If you are facing disciplinary action or if you are conducting disciplinary proceedings you will benefit from good employment law advice. What you say and do may have serious legal consequences. For Cambridge specialist employment solicitors, call Cambridge Legal on 01223 776200 or email enquiries@cambridgelegal.co.uk.
ACAS Code
The ACAS Code of Practice on Disciplinary and Grievance Procedures (the ‘Code’) sets out good practice guidelines for the handling of disciplinary and grievance issues in employment. It can be downloaded from the ACAS website https://www.acas.org.uk/acas-code-of-practice-for-disciplinary-and-grievance-procedures/html
Although it is not unlawful for employers to fail to follow the Code, employment tribunals must take it into account when deciding unfair dismissal cases. The Code does not apply to redundancy dismissals or to non-renewal of fixed term contracts.
Key recommendations in the Code for disciplinary action include:
- where possible, different people should carry out the investigation and disciplinary hearing;
- the employee should be given sufficient information about the alleged misconduct or poor performance to prepare to answer the case;
- employers and employees should act consistently;
- employees should be given the right to appeal against any formal decision made;
- notification of a disciplinary hearing should advise the employee of his or her right to be accompanied by a work colleague or trade union representative;
- investigations of potential disciplinary matters should be carried out without unreasonable delay.
Most employers will have their own disciplinary rules in a staff handbook. These may be followed provided that they comply with the general standards of fairness set by the Code. Many staff handbooks now require revision. We advise employers on this.
Current good practice requires the disciplinary process to be completed without undue delay and with the maintenance of confidentiality. A disciplinary process will include the following stages:
Investigation: the Code says it is important to carry out investigations of potential disciplinary matters without unreasonable delay. Where possible, different people should carry out the investigation and the disciplinary hearing in misconduct cases. This is to ensure greater objectivity by the employer in its investigation. The investigation does not have to be carried out in a specific way so that it could, for example, include holding a preliminary meeting with the employee or perhaps just be a simple gathering of evidence.
Minor issues: poor performance and minor misconduct should be dealt with informally by advice or counselling with the emphasis on encouraging the employee to improve. The employee must understand what is to be done to improve and how such improvement will be assessed.
Formal disciplinary action: where the matter is not minor, a disciplinary hearing enabling the employee to answer allegations should be held. The Code says that written notice must be given to the employee including notification that he or she may be accompanied. To enable the employee to prepare adequately, the notification must give sufficient information about the alleged misconduct or poor performance and possible consequences including copies of any written evidence such as witness statements.
Disciplinary hearing: the Code requires the avoidance of unreasonable delay while allowing the employee reasonable time to prepare her case. The employer must explain the complaint at the meeting and present the evidence while allowing the employee reasonable opportunity to answer questions and present his or her own case.
Suspension: this must be on full pay unless the employment contract says otherwise. If the misconduct is serious it may be fair to suspend but this should be for as short a period as possible and must be kept under review. What tribunals deem to be unnecessary or “knee jerk” suspensions can result in employers being liable for constructive dismissal.
Usual disciplinary stages
No employee is generally dismissed for a first offence unless it amounts to gross misconduct. Gross misconduct is not always what employers say it is.
Informal disciplinary action: typically used for cases of minor misconduct or unsatisfactory performance where an informal word is used to deal with the difficulty.
First formal disciplianry action: the disciplinary procedure starts at this stage for more serious problems and will normally take the form of the first written warning. ACAS say that the warning should set out the details of the complaint, the required improvement with a realistic timescale, and the right of appeal. The warning should also state that the employee is at risk of a final written warning if there is no improvement. The employee should be told how long the warning will remain current. ACAS recommend a six month period.
Final written warning: this is appropriate where there is no improvement within the timescale set on the first warning or if the behaviour is serious enough. Similar information should be given to that required on a first warning. This should also indicate the risk of dismissal if there is no improvement. ACAS’s suggestion is that 12 months is an appropriate period to keep such a warning active.
Dismissal: this results from gross misconduct or if the employee repeats offences or fails to improve after a final warning.
Appeals against disciplinary action
The opportunity to appeal disciplinary action is essential to natural justice. Employees should be informed of their right of appeal. Appeals should be heard without unreasonable delay. The appeal should be heard by someone appropriate, ideally a senior manager, who has not been previously involved in the disciplinary procedure. The size of an organisation will partly dictate what is practicable. Where it is not possible to have a different person hearing the appeal the individual involved must act as impartially as possible. Employees are entitled to be represented at the appeal hearing. If new evidence arises, the employee or his or her representative should be given an opportunity to comment and it may be necessary to adjourn the appeal to investigate.
Grounds for appeal are various: procedural irregularity, too severe a penalty, new evidence coming to light, unfairness generally etc. The employer’s appeal procedure may dictate how the appeal should be run. The Code appears to expect employees to appeal if they are unhappy with the decision. Failure to appeal may adversely affect compensation arising from a successful claim.
For specialist employment law advice on how to appeal or on how to conduct an appeal in relation to disciplinary action, contact Cambridge Legal Practice.
Discriminatory handling of disciplinary action
Employers may be guilty of discrimination in the way they conduct disciplinary action. Examples include failing to investigate properly or taking an exceptionally long time to deal with the matter.
Right to be accompanied at disciplinary hearings
Section 10 of the Employment Relations Act 1999 requires employers to allow employees to be accompanied by a trade union representative or another employee at disciplinary meetings. Although the companion cannot answer questions on behalf of the worker, they may address the hearing, confer with the worker, sum up the worker’s case, and express the worker’s views.
Section 10(6) of the Employment Relations Act 1999 requires that the person chosen to accompany the worker be allowed time off work to do so. If the chosen person cannot attend at the chosen time, the employer must postpone the meeting for any reasonable time proposed by the worker within five days of the original date.
The right to be accompanied does not apply to purely investigatory meetings.
The Code says that employees should be advised of their right to be accompanied when they are notified of a disciplinary hearing. Failure by the employer to so notify or refusal to allow the employee to be accompanied may result in a compensatory uplift of up to 25% if the employee’s employment tribunal claim is successful.
An employment tribunal may award compensation of up to two weeks’ pay where a worker has been denied the right to be accompanied.
The guidance above is necessarily general. For specific legal advice about disciplinary action based on your circumstances you will benefit form speaking to a specialist employment lawyer.
It is essential to be well prepared. Disciplinary action can be hazardous for employers and employees.
For advice on disciplinary action from specialist employment solicitors in Cambridge, call Cambridge Legal on 01223 776200 or email enquiries@cambridgelegal.co.uk