Employees behaving badly: Part 2


Date: 15 September 2010

If there’s a case to be answered….

Pulling hair kidsIf 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.

Angry businessmenAll 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”.

Stamp on businessmanWhere 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. 

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