The 10 Most Common Disciplinary Mistakes
Disciplinary proceedings can be a real headache for owners of small businesses and getting the process wrong or cutting corners can be costly and damaging to your business. As a HR Manager in business, I have seen things done well and seen things done badly. Over the years, I’ve seen the same common disciplinary mistakes repeated over and over again. Those mistakes cost the businesses that make them time and money, so it makes sense to avoid them! So, by reading this post you will understand what the most common disciplinary mistakes are and more importantly learn how to avoid them.
Common Disciplinary Mistakes And How To Avoid Them
Here are the ten most common disciplinary mistakes I come across with my tips on how to avoid them:
- Failing To Clearly Set Out The Allegations
When inviting an employee to a disciplinary hearing, issue a letter to the employee setting out the exact allegations against him/her; attach all evidence that you intend to rely upon and advise the employee of the right to be accompanied at the hearing. The employee should be allowed sufficient time to prepare for the hearing. A core principle of the ACAS Code of Practice is that ‘Employees who are under investigation should be informed in writing of the allegations against them, that an investigation will be carried out, be provided with a copy of the relevant internal procedure and notified of who to contact if they have any questions during the investigation. The employee under investigation should be provided with the opportunity to identify any potential witnesses in support of their explanations or any other documents or issues that may be relevant so that these can be followed up.
The nature of disciplinary allegations must be accurately and precisely set out to employees in any letter suspending them or inviting them to a disciplinary hearing. Phrases which are ambiguous or vague should be avoided and employers should be clear about exactly what acts or omissions they are alleging and whether they are considered to be, say, poor performance or misconduct.
Imprecise Allegations Render a Dismissal Unfair
The Employment Appeal Tribunal (EAT) has held that an employee’s dismissal following an allegation of ‘loss of £3,000’, when the real reason was the employer’s belief that she had stolen the money, was unfair.
The EAT ruled that it is a ‘fundamental right’ that in disciplinary proceedings the charge against an employee should be ‘precisely framed’.
- Failing To Follow The Disciplinary Procedure or ACAS Code of Practice
If an employee’s conduct does not meet acceptable standards the company’s disciplinary procedure must be followed through each stage to ensure the dismissal is fair.The procedure should follow the guidelines set out in the ACAS Code of Practice. The Code sets out the steps that should be taken to ensure a fair and reasonable procedure is followed for resolving instances of misconduct in the workplace.
The failure to follow a fair procedure can lead to an employee having a legitimate claim for unfair dismissal and no matter whether the employee has committed the misconduct for which they are accused, they could still succeed in their claim if there is an absence of a fair procedure having been undertaken.
Fair Process For A Misconduct Dismissal
Dismissal will be an appropriate outcome in a disciplinary situation where the employee fails to correct their conduct or behaviour following previous formal disciplinary warnings or where their conduct or behaviour is so serious it warrants instant dismissal (gross misconduct).
- Failing To Conduct A Proper Investigation
A reasonable and thorough investigation needs to be followed and all relevant evidence gathered before a decision is made as to whether formal action will be taken. The employer should take the time to establish the facts of the case. It is advisable to invite the employee to attend an investigation meeting. Employees involved in the investigation should be asked not to discuss the allegations. The ACAS Code states that ‘it is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. This is important to ensure that witnesses’ recollections remain fresh and accurate, and to obtain useful documentation that might otherwise be destroyed.
The introduction of the ACAS Code of Practice, in 2009, made investigations in both disciplinary and grievance matters critically important prior to a formal hearing.
How To Investigate A Disciplinary Matter
The thoroughness of the investigation will depend on the circumstances of the case and the seriousness of the allegations against the employee. The aim of the investigatory meeting is to establish the facts, disciplinary action should not be considered at that meeting. The ACAS Guide, which supports the ACAS Code on discipline and grievances at work, also advises employers to “keep an open mind and look for evidence which supports the employee’s case as well as evidence against”.
- Failing To Suspend An Employee Facing Serious Allegations Of Misconduct
If you consider that the allegations against the employee are potential gross misconduct, you should consider suspending the employee on full pay pending a full investigation. If you do not suspend the employee and the employee is later dismissed for gross misconduct, it may be difficult to argue that the employee committed a fundamental breach of contract justifying dismissal if you allowed the employee to continue working in the same role or even in another capacity.
It is important to advise the employee that suspension does not constitute disciplinary action and does not itself imply any presumption of guilt on the part of the employee.
Top Tips for Dealing with the Suspension of an Employee for Alleged Misconduct
For any dismissal to be fair it is essential that a thorough investigation has taken place to determine whether disciplinary action is necessary. When suspension is used it should always be a precautionary measure to protect both the individual and the company, the circumstances of the case must justify it and that it must by necessary to ensure a fair investigation.
- Failing To Give The Employee All The Evidence Collected
All evidence that the employer intends to rely upon at the disciplinary hearing should be given to the employee in advance of the hearing. The employee should be given sufficient time to consider the evidence and prepare a defence.
The evidence to be relied upon should be attached to the invitation to attend the disciplinary hearing letter.
Where a disciplinary investigation results in the decision to proceed to a disciplinary hearing, the employee should be provided with copies of any witness statements and other written evidence that will be referred to in the hearing. The employee has the right to know the case against them and to be able to challenge it, so evidence should be anonymised or withheld only where there is a strong reason for doing so.
The ACAS Code of Practice on disciplinary and grievance procedures, which is taken into account in relevant tribunal proceedings, states that it would normally be appropriate to provide the employee with copies of any written evidence with the notification of the disciplinary hearing. The non-statutory guide that accompanies the code states that the employer should give copies of any meeting records to the employee, but states that protecting a witness is an example of a circumstance in which withholding information may be appropriate.
- Failing To Allow The Employee To Be Accompanied At A Disciplinary Hearing
An employee is entitled to be accompanied by a work colleague, a trade union representative or an accredited trade union official. If the representative cannot attend the hearing, the employee should offer an alternative time within 5 days so that they can attend. The employee should be advised of the right of accompaniment in the invitation to attend the disciplinary hearing letter.
Employees have the right to be accompanied by a colleague, a trade union representative or an official employed by a trade union.
The Statutory Right To Be Accompanied At A Disciplinary or Grievance Meeting
The person who accompanies them at such meetings is known as a “companion”. The revised ACAS Code of Practice on Discipline and Grievance (2015) provides guidance on the statutory right of accompaniment.
- Failing To Warn The Employee Of The Possible Consequences Of The Disciplinary Action
A reasonable and thorough investigation needs to be followed and all relevant evidence gathered before a decision is made as to whether formal action will be taken. The employer should take the time to establish the facts of the case. It is advisable to invite the employee to attend an investigation meeting. Employees involved in the investigation should be asked not to discuss the allegations.
It is a ‘fundamental right’ that in disciplinary proceedings the charge against an employee should be ‘precisely framed’.
The Importance of a Final Warning
The decision in JJ Food Service Limited v Kefil emphasises the importance of employers ensuring that employees are given formal warnings when their behaviour falls below the accepted standard and are informed of the consequences if such behaviour continues, particularly where dismissal is a possible consequence.
- Failing To Have Different Managers Dealing With The Different Stages Of The Disciplinary Process
The person conducting the investigation process, disciplinary hearing and appeal hearing should be different or there is a possibility that the dismissal could be unfair. In an ideal scenario, the investigation, disciplinary hearing and appeal hearing should be conducted by different people. In a small business, it may be hard to find someone unconnected so whoever carries out the investigation must do so with an open mind.The ACAS Code states that ‘where practicable different people should carry out the investigation and disciplinary meeting’
Where practicable, an investigation and any subsequent disciplinary hearing should be carried out by different people.
Unfair for small employer to have one person in charge of whole disciplinary process
In Henshaw v Touch Tanning Ltd ET/2605284/09, Touch Tanning Ltd were a small family-run business who had one person act as judge, jury and executioner when they accused an employee of misconduct. The employee was dismissed, and the employment tribunal found that the company had breached the ACAS Code of Practice on disciplinary and grievance procedures by having one person undertake both the investigation and disciplinary hearing. The outcome was that the dismissal was unfair.
- Failing To Allow An Appeal Stage
The employee must be provided with an opportunity to appeal the disciplinary sanction. The employee should be advised of the right of appeal in the disciplinary outcome letter. The appeal hearing should be unbiased and the outcome should not be a foregone conclusion.
A failure to provide the right of appeal would amount to a breach of the ACAS code and could result in a finding of unfair dismissal.
Appeals Against Disciplinary Action
The statutory ACAS code of practice on disciplinary and grievance procedures provides practical guidance on handling disciplinary and grievance situations in the workplace, and includes recommendations about appeals against disciplinary penalties. Failing to provide a right of appeal would amount to a breach of the ACAS code and could result in a finding of unfair dismissal.
- Failing To Keep A Full And Accurate Record Of The Disciplinary Proceedings
A full written record should be made of the whole process. If notes are not taken, it leaves the details of the meetings more open to challenge. All information gathered in relation to the employee should be stored in their personnel file.
Tribunals often pay close attention to the notes that were taken during the investigation, hearing and appeal meetings. The ACAS Code of Practice on Disciplinary and Grievance Procedures doesn’t specify what information should be included in formal records of meetings.
Note Taking At Disciplinary Hearings
Note taking at disciplinary hearings can be quite difficult, especially when faced with a complex disciplinary hearing. It can be difficult to keep track of what is been said, decide what to ask next and remember to keep accurate notes as you go along. So having another member of staff, or independent person, present at the hearing to take notes allows the person leading the hearing to totally concentrate on the process and the explanations the employee provides.
If you have any questions, please call me on 0114 360 0626 or simply email me at firstname.lastname@example.org.
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