Top Tips for Employment Disciplinary Procedures

What are the main things I need to think about under disciplinary procedures?

I’ve been asked about some of the top 5 things that go wrong with the disciplinary procedures. And one of the things employers are not necessarily always aware of is that, if there is a breach of the procedures, then you can be caught in the wrongful dismissal or breach of contract arena. And that’s the arena that you don’t really want to be going into, because, what it means is that where somebody has been dismissed or disciplined and was is a very good reason for doing that. You can actually just be caught on the technicalities. So you need to be thinking about how you manage your procedures and what are you going to put in place.

ACAS Disciplinary Code

So a good place to start is looking at the ACAS Disciplinary Code. And that would give you a good foundation for setting out your policies, but you might equally want to think – actually, where I’ve got staff who don’t qualify for unfair dismissal rights. And there are various categories of staff who fall into that situation, do you want to include in your contract an exemption or a type of discretion where you don’t have to apply the full procedure? And certainly, I have advised many of my small business employers to do just that. With larger companies, they want to have standard procedure and want to be able to be fair to everybody. And they have the resources and capacity to do that. So it does vary according to which client I am advising.

But certainly, there are five common things that are often go wrong.

Five common things that are often go wrong in disciplinary procedures.

Highlight the consequences of the disciplinary action

1) The first one is ensuring that the employee knows that there are consequences to the disciplinary action. Now, this may seem to be fairly obvious, but sometimes, employees are not told that they might end up being dismissed. So if you forget to tell them that there are consequences, such as, having a warning; or ending up being dismissed; something on those lines, then you may be in fault of actually breaching one of your procedures or failing on technicality.

Employee rights at disciplinary hearings

2) One of the other key things employees are entitled to, is being companied at disciplinary hearings. Now, the right is for them to be companied by a trade union representative or a fellow employee. Bringing along mum or granddad is within your discretion, but generally, I tend to advise that doesn’t happen and they certainly don’t have a right for that. And the reason that I say not to allow friends and relatives, is simply because they are not necessarily professionally trained, but also the situation becomes very emotional if you are dealing with a crying grandma in the corner. So it is probably better to stick to fellow employee or trade union representative. And make it very clear at the start exactly how the meeting is going to be handled; and what their involvement is going to be. And I can discuss more about that later. But that’s one of the other key things that you need be thinking about.

Deal with disciplinary matters promptly

3) One of the other things that could apply is dealing with the case as quickly as you can. So with a larger organization, for example, local authorities, NHS, police; sometimes cases can take a very long time. And that maybe because there are several layers of management to go through; there are tougher procedures to go through ; investigations may involve many people. So there are various reasons for delays. However, we would expect that in a smaller business, disciplinary procedures can be dealt within days, in the sense of the commencement starting very quickly and things being dealt with very rapidly. In a larger organization, we would expect it be wrapped up in a few weeks. Now, there are exceptions. And I can speak to you about all of those. But generally, long delays mean that there is more scope for analysis of why those delay took place; why evidence has disappeared; people have moved on, so you can’t get evidence to corroborate a story. So generally, try to keep disciplinary matters dealt with very quickly. So that’s another tip.

Who is dealing with the disciplinary matter?

4) Another thing that you need be thinking about is who is dealing with the whole disciplinary matter. Now, in small businesses, it can be quite difficult, because really, there is one cleaner, one worker, one boss – and that’s probably you! And you then got your other worker who you are trying to discipline. But what really is the idea is to have one person doing the investigation; another person doing the hearing; and a third person doing the appeal. And there are ways that you can handle that, if you are a small business. So, for example, I sometimes sit as the appeal person for some small business clients. So that when there is a disciplinary hearing, and the person makes an appeal, they know that the person hearing it, is not the same person, they have not got invested interest, they are going to be independent. And your appeal person needs to be able to the gain the confidence of your member of staff. Now, it might seem that when I do that, it looks a bit dodgy to the employee. But really, if you got somebody who is able to take on that role, and do it confidently and in a way that demonstrates their integrity. You can actually use that as a facility through ShenSmith Barristers and it means that you then have a resource you can reply on. So, that’s something that you got to be aware of. In larger companies, usually that’s all wrapped up. You got your own investigation processes, hearing processes, appealing processes all sorted out. But don’t make the mistake of letting the same person deal with all of them. Simply because, it means it’s going to be a conflict of interest at some point. And certainly, another tip for small businesses, is that if you were the person who has been offended in some way; so for example, if you were slapped on the face by a member of staff, please don’t be the person doing the investigation, hearing or appeal.

Investigate the disciplinary matter, rather than deciding the outcome first

5) So the other thing that people sometimes forget, is that the process of the disciplinary proceeding is really meant to be about finding out the truth of what happened. Now, when you are the person involved, whether that’s the employee or the employer, it can feel like as if that “Actually, the fact is there and that’s it. We all know what happened.” But really, it should be along the lines of police investigation in some ways, (I am generalising), but really, it’s about finding out the facts, rather than an police officer deciding “ I know who did it and that’s the path I am going to”. So really, when you do hold a disciplinary hearing, if you are sitting at that hearing with a letter on the table saying, “ Thank you very much for attending this hearing. These are the reasons why I believed that you committed to this offence. This is the date of your dismissal. ” and get ready to hand the letter over at the end of the meeting. That actually signifies a predetermination of guilt. But you would be amazed how many employers actually pre-prepare their letters to the member of staff, deciding what the outcome is going to be. I have sometimes sat on board meetings, (which is another facility that you can take an advantage of), where I’m able to see how an employment law matter is going to pan out. So we might discuss a difficult employee or something that is brewing on the horizon. And one thing I had to alert boards to, is not to be emailing or writing to each other or really even having the discussion about what do we do with X, Y, Z employee; and how we are going to get rid of them, because this has happened. Sometimes, board members, director-level management staff, don’t necessarily have that much familiarity with employment law and HR procedures. Whereas, your HR specialist will know absolutely that the disciplinary procedure is about finding out what happened rather than deciding this is the route we are going to follow, because certainly, if you got an audit trail of making decisions prior to hearings or prior to an investigation, you are going to get into difficulties, because some of them maybe disclosable.

So those are my top tips for dealing with disciplinary procedures, and avoiding the breach of contract – wrongful dismissal path for employers.