The disciplinary procedure in the workplace

While most workplaces report zero disciplinary action each year, sometimes, issues crop up relating to an employee’s behaviour and performance. In this case, it is important to address and resolve the situation as quickly, and painlessly as possible.

However, it could be argued that this is easier said than done. Many employers find the disciplinary procedure a bit of a minefield. And, there are quite a few rules to follow.

As an employer, when initiating disciplinary action, your primary goal should be to ensure fairness and transparency.

The disciplinary procedure is governed by two pieces of legislation, namely the Employment Act 2008 and the Employment Tribunals Regulations 2008. Violating employee protections will land you in trouble. So, make sure to follow the correct procedure, in order to avoid any unfair dismissal claims.

Reasons to initiate the disciplinary procedure

When running a business, you want to make sure things are running as smoothly as possible. Employees should be arriving on time, performing their duties to the expected standard and not wasting all their time on tetris and social media.

So, of course, there are some very valid reasons for initiating the disciplinary procedure. Some of the common reasons include:

• An employee’s performance has been continually declining
• An employee has been participating in substance misuse
• An employee has been involved in bullying or harassment
• An employee has violated health and safety regulations
• An employee has had a number unauthorised absences
• An employee has repeatedly violated the workplace dress code
• An employee has been involved in theft, fraud or misuse of company equipment
• An employee has breached confidentiality and data protection
• An employee has breached financial regulations
• An employee has supplied false information when applying for the job

Following the correct procedure

If you are unhappy with your employee’s conduct, you may feel unsure of how to approach the situation. Well, never fear, read on to discover the correct procedure to follow…

To begin with, when an employer first becomes aware of an employee’s minor misconduct or decline in performance, they should conduct an investigation. This will involve gathering evidence, hearing from witnesses, recording statements and potentially holding investigatory meetings.

It is always best to first try to address the matter informally. This should be in the form of an oral reprimand, whereby an employer constructively explains their grievance to an employee, and requests a change in behaviour or, improved performance.

This first step will give employees the opportunity to present their side of the story. It will also allow employers to request that the employee undergoes workplace training to address their performance issues. It is also essential for employers to keep a record of this oral reprimand.

If misconduct persists, or it appears as if the employee is not making any progress, the employer may decide to pursue disciplinary action further. When this decision is made, said employee should be notified as soon as possible with a written notice, inviting them to a disciplinary meeting.

Along with this notification, the employee should be made aware of all allegations made against them and all possible outcomes of the disciplinary procedure. They should also be provided with the accounts given by witnesses and informed of their statutory right to be accompanied in the meeting, be this a union representative or colleague.

The meeting should be held as soon as possible, while giving the employee enough time to prepare. Usually this is five days from notification.

During the disciplinary meeting, the employer should clarify in detail the allegations against the employee. They should also provide the employee with ample opportunity to question these allegations, as well as the chance to provide contrary evidence and bring forward their own witnesses supporting their case.

After the meeting concludes, the employer should provide the employee with a decision without delay. If this is a written warning, it should outline the employee’s offences, and how the employer believes they can rectify the situation, whether this is a change in behaviour or more training. The employee should also be given a time frame which outlines how long they have to improve their behaviour or performance.

If this misconduct is not addressed and resolved, then the employee will likely be issued with a second warning. After this, the typical conclusion is dismissal. Of course, an employee will have the chance to appeal this decision.

However, if an employee participates in a form of gross misconduct, it is unlikely that they will be issued a first warning and second warning, and instead will be dismissed immediately.

Common breaches to avoid

While the disciplinary process can be a difficult and stressful one, it is essential that the correct procedure is followed. That being said, sometimes employers slip up, and breach the required steps. This can land companies in some pretty deep water…

One of the worst mistakes an employer can make when taking disciplinary action is not following the correct procedure. Choosing to ignore the ACAS Code of Practice on Disciplinary and Grievance Procedure, and the company’s own code of practice is unfair dismissal 101.

Likewise, even if a company does follow the ACAS Code of Practice, doing the following will also result in serious consequences:

• Failing to clarify the reasons why an employee is being written up
• Failing to properly investigate misconduct and other allegations
• Failing to inform an employee that they are entitled to representation at the hearing, or preventing them from accessing representation
• Failing to provide an employee with the evidence that will be used against them in the hearing
• Failing to inform an employee of the potential consequences of the hearing
• Making no attempt to resolve the situation informally
• Issuing a warning in “bad faith”
• Failing to provide the employee with a sufficient appeal process
• Failing to keep accurate records of the entire procedure
• Failing to allocate a different individual for each stage of the process

The consequences of breaching procedure

If an employer fails to adhere to the correct disciplinary procedure, and acts too rashly by dismissing an employee, they might be faced with an unfair dismissal case at an employment tribunal.

If it is found that the employer’s actions resulted in procedural failure, then a tribunal can increase the compensation amount awarded to the employee by 25%.

This can be decidedly costly for an employer, because as of 6 April 2019 the maximum unfair basic dismissal award is £15,750, while the maximum unfair dismissal compensatory award is £86,444.

Final thoughts

So, before you jump the gun to save time and money, take a moment to consider the consequences of your actions. It’s much wiser to take a moment to reflect on the situation and follow the correct procedure, than to charge full steam ahead and jeopardise the reputation of your company.