If there’s a case to be answered….
If further action is necessary, the employee should be asked, in writing, to attend a disciplinary meeting on a specified time and date. The letter should set out clearly the allegation(s), consequences if the complaint is upheld (i.e. the imposition of sanctions, including dismissal if necessary) and either (a) a formal warning (b) some other form of disciplinary action may be issued or (c) a warning or other disciplinary action is to be confirmed (such as at an appeal hearing). The employer should tell the employee they are allowed to be accompanied by a union rep or colleague at the meeting. Evidence, including witness statements, should normally be given to the employee in advance of the meeting.
The right to be accompanied at the disciplinary meeting does not extend to being accompanied at investigatory meetings and nor does it confer the right to be accompanied by a lawyer (although recent case law suggests this may be changing). If an employer dismisses an employee for either asking to be accompanied, or for being the companion to an investigated employee, that dismissal will automatically be unfair.
All allegations should be discussed carefully and the employee allowed to put their case. Notes of the meeting should be taken by a dedicated note taker. This meeting should be held without undue delay, but allow the employee sufficient time to prepare their case and, where possible, should be conducted by someone other than the person who investigated the complaint. The companion may not answer direct questions but can help sum up the employee’s views.
Once the meeting has concluded the employer needs to carefully consider whether disciplinary action is justified, being careful to avoid taking a decision that might be viewed as discriminatory, arbitrary or inconsistent. In many cases employees will argue that the disciplinary action taken against them was unfair because another employee in similar circumstances was treated differently.
The Code requires that an employee be given the right to appeal against any disciplinary finding made and, usually, the employee will have to submit their appeal within a fairly short period of time - often five working days. The disciplinary sanction imposed will depend upon the circumstances of the case. In serious cases (aka gross misconduct) such as dishonesty, summary dismissal may be appropriate. Other, less serious cases, might require the imposition of a warning. Where the employee is found to have been underperforming he/she should be given realistic targets over a reasonable time frame for improvement. Many disciplinary policies will provide hierarchy of warnings - Oral, First, Final, then Dismissal. To terminate an underperforming employee can, therefore, be a lengthy process. Even in cases of gross misconduct the proper process should be followed, even if the employee “banged to rights”.
Where the employee is dismissed the employer should communicate the decision promptly and confirm the date of termination. Dismissal for gross misconduct means that the employee is only entitled to be paid their salary and contractual benefits up to the date of termination, which will usually be the date that the employer reaches its decision that the complaint is upheld. There is usually no obligation on the employer to pay or make the employee serve notice in cases of summary dismissal, unless the employer is ordered to do so by an Employment Tribunal or Court if the employee sues.
For some employers the above will make sobering reading and employers would be well advised to take legal advice before commencing the disciplinary process. The Employment law landscape is complex and beset by many pitfalls. Always take legal advice from a specialist before taking action. Finally, before hankering for the days when employees could be sent to prison for insubordination or wishing for the right to flog the underperforming salesman pour encourager les autres just think, it could be worse: how long will it be before children start demanding dispute resolution procedures at home? Acas for children? Perish the thought.
As the school holidays thankfully draw to a close and parents can look forward to someone else getting paid to entertain, educate and admonish their delightful offspring for the next few months, my thoughts have remained with conduct and discipline.
It occurs to me that in many workplace disputes there is little to distinguish two employees sparring with each other from a five-year old kicking his sister for playing with the “wrong” toy. The main difference is how you resolve the dispute, the Masters and Servants Act 1867 - which treated “aggravated breach of contract” by employees as a criminal offence punishable by imprisonment and hard labour – having been abolished.
So, leaving aside flogging and imprisonment, how do employers deal with conduct issues in the workplace or, even more difficult, “misbehaviour” outside office hours that somehow involves the employer? What is misconduct and what penalties can be applied to the miscreant?
First things first. There is no one standard definition of misconduct; it is a question of circumstance and fact. Obviously some behaviours, such as stealing, swearing, refusal to work, being abusive to colleagues or managers, aggression, lateness and absenteeism are, in principle, fairly clear cut: the problem is determining that they have occurred.
Most decent employment contracts or handbooks usually contain a list of behaviours that are considered misconduct, or capable of amounting to it. And every employer, whatever its size, must also have a disciplinary and grievance policy.
Discipline law has been under much scrutiny since 2004 when the last government introduced a statutory procedure with the aim of reducing the number of tribunal claims - in practice it had the opposite effect, principally because tribunals had the power to adjust compensation payments if either party departed from the set procedure.
In 2009 the system was replaced by a simpler procedure governed by the Acas Code of Practice, which tribunals are generally required by law to take into account . Admirably succinct at 11 pages, the Code is supplemented by hefty (but not legally binding) guidance at 88 pages in length. Tribunals retain the power to adjust an award where there has been an unreasonable breach, but this is now very much a matter of exercising discretion (rather than mandatory).
What are the procedures? Acas’ emphasis is for the employer to conduct a full investigation of any allegations of misconduct as soon as the issue arises. In some cases it may be necessary to suspend the employee. Care should be taken in this situation as suspension is not a disciplinary tool and should be imposed for as short a time as possible. The employer should also write to the employee clearly stating that the suspension is not to be seen as prejudging the outcome and confirming that the employee will continue to be paid.
Once the investigation has taken place, the employer needs to decide if the allegations hold water, and, if so, take further action.
Read Part 2 to find out how to implement disciplinary measures.
Big changes to business law come into force twice a year – in April and October. 1 October sees employment law changing yet again – the minimum wage is going up, and the Equality Act kicks in.
If you’re a manager battling hard times the last thing you need is more law, but you’ll be pleased to hear that this round of law changes might end up making your life more straightforward. The key new law, the Equality Act, harmonises the current muddlesome raft of equality and diversity legislation into one single set of rules.
Although the Act is a huge piece of legislation, there won't be any major changes to employee rights. However, you should bear in mind that various types of bad business behaviour have now been specifically made unlawful:
The Act also makes various changes to victimisation and harassment rules. There aren’t any changes to maternity/parental leave rights at the moment, although some legislation may appear for April 2011.
Even if this doesn’t affect you right now, you may want to cast an eye over your HR policies to get rid of mentions of old rules – law like the Disability Discrimination Act will no longer exist (although its obligations do). Acas has produced a crystal-clear one-page chart that sets out – in glorious technicolour - all the employer’s responsibilities under the Act.
Changes to the the national minimum wage (NMW) are even more straightforward – all the rates increase a little, and there is a new rate for any apprentices you have. From 1 October, you should pay your NMW staff:
The main rate - £5.93 – now applies to workers aged 21-plus (was 22-plus). Apprentices - who previously didn’t qualify - should now be paid at least £2.50 an hour if they are under 19, or 19 and over and in their first apprenticeship year.
And that’s it – some businesses in the pub trade, recruitment agencies and modeling agencies will need to tweak their working practices, but overall, this CCD is, mercifully, legislation-light for small firms.