Disciplinary process
Danny Done, Managing director of Portfolio Payroll, provides guidance on the steps to take and process to follow when taking disciplinary action
I started my business only seven months ago, and I have just experienced my first problem with an employee. I am unsure of what step to take next as I have never held a disciplinary before. What processes are involved?
T
aking disciplinary action is one of the most difficult tasks for an employer
to undertake. Not only can it be a difficult process to put into practice, but the cost of making a mistake can be extremely high too – both in terms of jeopardising your employee morale and in any legal costs that would occur should the error result in an employment tribunal claim. The majority of employers all make the same mistakes time and time again that could have been avoided by following the required procedure when it comes to dealing with a disciplinary. The procedure is, however, rather complicated and employers must be prompt and consistent when implementing it. With this in mind, it is therefore hardly surprising that employers can be caught out. To help you avoid a number of the common mistakes made in the disciplinary process, several frequent mistakes are set out below. Firstly, the employer must clearly establish the facts before deciding whether formal action is necessary. The facts must be recorded, for example: documentary evidence, business rationale, written statements, minutes of informal investigatory meetings or formal consultation meetings.
It must be made clear to the employee exactly what they are being accused of and what the employer’s concerns are. These must be the honest concerns of the employer and should be held consistently throughout the disciplinary process. Disciplinary action can only be imposed
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in respect of allegations that were alleged during the disciplinary proceedings. Following on from this, the employee must be made well aware of the possible outcomes of any disciplinary action that you plan to take against them. Doing this is to ensure that the employee fully understands the gravity of any of the allegations made against them and for them to be able to defend such allegations fairly and appropriately.
Even where an employer is convinced that the employee is definitely in the wrong, any explanation or evidence to the contrary should not be disregarded; and it should certainly be investigated properly. Employers must ensure that they do not ignore any medical reports and that they do not fail to act on any recommendations made in them. All evidence that the employer intends to rely on should be provided to the employee ahead of any disciplinary hearing to allow adequate time to prepare a defence. There have been cases where an employee who could have been fairly dismissed on the facts, was considered to have been unfairly dismissed because the reason stated for such action was incorrect. It is sometimes unclear whether an employee has been dismissed for capability or conduct; employers may prefer to claim conduct reasons in order to avoid confrontation, even though capability was the issue.
...SOMETIMES
UNCLEAR WHETHER AN EMPLOYEE HAS BEEN DISMISSED FOR CAPABILITY OR CONDUCT
Following on from the point above, it
is important to use the correct procedure for the problem in question. There are a number of steps that must be carefully followed in order for a fair and correct procedure to have been in place, depending on the nature of the problem. Conduct issues are not the same as capability issues, and each should be dealt with differently. Where the same person is responsible for conducting the initial investigation, disciplinary hearing and subsequent appeal, the disciplinary process may be deemed unfair or biased towards the employer. Although it may not be possible to conduct the process in any other way for small employers, different people should carry out the process where practicable. Where dismissal will take place, employers must check the contractual or statutory notice period the employee requires and whether it is a requirement/ appropriate that the employee works their notice period. Holiday pay due/owed must also be calculated, as well as any further statutory payments, e.g. statutory redundancy pay. Remember, only in the very serious cases will summary dismissal be justified; it is important that the employer’s decision and the action to be taken are considered reasonable in the circumstances. It is most likely that an employee should receive a series or warnings before a final written warning to ensure any dismissals are appropriate. The process required for disciplinary action can be quite complicated and it is easy for an employer to be caught out. The specific procedure will vary depending on the reason for dismissal, so employers should always take specialist advice when contemplating disciplinary action to ensure a fair process is followed and that this can be evidenced as necessary.
PP
HRfocus
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