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19 November 2021

A Quick Guide to Disciplinaries

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If you have a difficult situation and you think you may need to discipline an employee, then don’t hesitate to call our HR and Employment Law team on 01284 767766 for a chat and some guidance. In the meantime, you can read the following useful guide for how to deal with an employee’s misconduct.

A disciplinary procedure is a formal way for you to deal with an employee’s unacceptable or improper behaviour. 

1. Before you start

Before you start any disciplinary procedure, you should carry out an investigation to gain as much evidence and information about the alleged misconduct as you can.  Also see our Quick Guide to Investigations.

You should also read any disciplinary policy to make sure you know what you are expected to do and whether there are any rules about who has the authority to discipline an employee.

2. Give details

Once you’ve completed your investigation and made the decision to start a formal disciplinary procedure, then you should give your employee the following information:

  • Sufficient information about their alleged misconduct
  • Full details of the evidence you have gathered
  • The possible outcomes of the procedure
  • Details of any disciplinary policy that applies (it’s usually best to enclose a copy of your disciplinary policy with your letter or email)
  • Details of their right to be accompanied
  • Information about the disciplinary hearing (date, time, venue and who will be there)

You need to give your employee this information as soon as you can and make sure you do it long enough before the disciplinary hearing for them to be able to properly prepare for the hearing. 

3. Follow a fair procedure

You should follow a fair procedure when you discipline an employee.  What amounts to a fair procedure will be different in each case and it depends on the size and resource of your organisation, what the employee is accused of and the severity of the alleged misconduct.  ACAS has produced a code which sets out a suggested procedure for employers to follow.  The ACAS code is not law, but it will be considered by an Employment Tribunal when deciding whether a fair procedure was followed. In addition, if you have your own disciplinary procedure, you’ll need to follow that where it requires more than the ACAS code. 

The ACAS code suggests that employers should carry out an investigation, give sufficient information to the employee about the allegations and the procedure that will be followed, hold a meeting at which the employee has a right to be accompanied, confirm the outcome to the employee and let them have the right to appeal the decision. So, if you follow this Quick Guide you should meet the standards set out in the ACAS code.

4. Hold a disciplinary hearing

You should arrange the disciplinary hearing for a time and at a location that is reasonable. This will normally be at the employee’s place of work and during their normal hours, but that isn’t always the case.  Sometimes it’ll be appropriate to hold a meeting off work premises and outside of normal working hours, such as when you don’t believe it’ll be safe to let your employee back into work.

Your employee has the right to be accompanied at the disciplinary hearing by a work colleague, a workplace union representative or an outside trade union official.  Your employee can ask for a postponement if their chosen representative isn’t available to attend the first hearing you arrange.  If they do this then you should postpone the hearing.  You must agree a postponement for up to five working days, but you can and should agree a longer postponement if it’s reasonable for you to do so.  You also have a duty to make reasonable adjustments for disabled employees, so you may need to allow them to bring someone else along to a disciplinary hearing such as a support worker or a parent.

The disciplinary hearing is a time for both you and your employee to have your say.  You can structure it how you like, but the simplest format you can use is for you to:

  • Open the hearing
  • Introduce those present and their roles
  • Explain that it is a disciplinary hearing and the possible outcomes
  • Run through all the allegations
  • Set out all the evidence you have
  • Let your employee have their say (this can be for them to deny any part of the allegations, explain what they believe happened, offer any mitigation, ask questions, call witnesses, introduce evidence and raise any other points they feel are relevant)
  • Sum up the hearing
  • Adjourn to carefully consider the allegations and all the evidence and then make your decision
  • Reconvene the hearing to let your employee know the outcome of your deliberations, or if you can’t give the outcome on the day of the hearing, let your employee know the timeframe you’re working to

If your employee is accompanied at the hearing you should explain that the companion can (but they don’t have to):

  • Set out the employee’s case
  • Respond to any comments and points made at the hearing
  • Answer questions for the employee (you don’t have to allow this but is it usually better to do so)
  • Discuss matters raised at the hearing with the employee (in private if necessary)
  • Take notes
  • Sum up the employee’s case for them

You should always have someone present at the hearing to take notes for you.  That can be the person chairing the meeting, but it’s generally better to have a separate note taker.  You should send a copy of your notes of the hearing to the employee (they don’t need to agree them, but it’s good to be able to show that you sent the notes to your employee).

5. Grievance or sickness during the procedure

If your employee goes off sick during the disciplinary procedure, then you may need to change your approach to the disciplinary procedure.  You don’t have to put the procedure on hold indefinitely, but you will need to pause it while you gather evidence about whether you can continue with the disciplinary procedure and if so, how.  You may need to get a medical report or occupational health report before your restart the procedure.  You may also need to consider holding the hearing at a neutral venue or allowing the employee to make written representations rather than turning up to the hearing. 

If your employee raises a grievance while they are being disciplined, the best course of action for you is to pause the disciplinary procedure and deal with the grievance first. That way, you can address all your employee’s issues before you go ahead with the disciplinary.

6. Decide on the outcome

You need to consider the allegations, all the evidence and what was said at the disciplinary hearing before making your decision.  You don’t need to prove beyond all reasonable doubt that your employee committed the act of misconduct as the law only requires you to believe that it is more likely than not that they did it.  That said, you’ll need to be able to back up and justify your decision with the facts and evidence, so it needs to be more than just based on a ‘gut feeling’.  

If you find your employee guilty, then you need to decide what you’re going to do next.  This could be taking no further action, suggesting further training, giving an informal warning, issuing a formal warning, demoting the employee or dismissing the employee.  Whatever you decide to do, it will need to be both fair and in accordance with your disciplinary policy.

7. Give the outcome

You should let your employee know the outcome as soon as you can.  You can either do this in writing of do it verbally and then confirm the outcome in writing.  You need to make it clear what you have decided and why you came to that conclusion. You must also explain to your employee that they have the right to appeal your decision and how they go about doing this.  Additionally, you should send a copy of the hearing notes to your employee at the same time as you send the outcome to them.

8. The appeal

If your employee appeals you should arrange an appeal hearing as soon as you can.  Your employee has the right to be accompanied at the appeal hearing in the same way as they did at the disciplinary hearing.  Some employers try to restrict the scope of the appeal hearing but it is safer for you to treat it as a complete rehearing.  That way, the person hearing the appeal can reconsider all the evidence and reach their decision based on the facts rather than on a narrow point. 

Yet again, you should take notes at the appeal hearing and confirm the outcome to the employee in writing.  When you write to your employee also send them a copy of the appeal hearing notes and confirm to them that this is the final stage of the procedure. 

We offer legal services to businesses of all sizes across Suffolk, Cambridgeshire, Norfolk, Essex and London. Our experienced team can provide astute legal advice on all matters of HR and Employment Law. Offices in London, Bury St Edmunds and Sudbury get in touch today on 01248 767766 and find out more on the services we offer.

Please note this article is provided for general information purposes only to clients and friends of Atkins Dellow LLP. It is not intended to impart legal advice on any matter. Specialist advice should be taken in relation to specific circumstances. Whilst we endeavour to ensure that the information in this article is correct, no warranty, express or implied, is given as to its accuracy, and Atkins Dellow LLP does not accept any liability for error or omission.

© Atkins Dellow LLP 2021

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