Having a disciplinary procedure is not all about disciplining employees. It’s also about working with your staff to maintain high standards of conduct and encouraging people to improve if they fall below these standards.

Unfortunately for employers, it is frustratingly easy to bungle disciplinary procedures. You may have a perfectly valid reason to dismiss, but find yourself facing a claim for unfair dismissal because you have not followed a fair procedure.

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To avoid finding yourself in front of an Employment Tribunal, here is an overview of the disciplinary process.

Are formal proceedings necessary?

The first question you need to ask yourself is whether you can resolve the issue through informal channels or do you need to launch disciplinary proceedings?

For example, you may be confronted with an employee who has committed one minor act of misconduct (e.g. they have turned up late to work), but have always had a good disciplinary record. It may be the case that a quick informal word works wonders: it solves the issue and prevents the problem from escalating any further.

Investigate the alleged misconduct

It is essential that an investigation is undertaken to ascertain the facts.

Depending on the complexity of the case, the investigation may last a couple of days or a few weeks. For instance, if you have caught someone taking money out of the till, this may need little investigation. However, if you see that stock is missing but you have no idea who the culprit is, this may require a longer investigation.

The person running the investigation may need to hold investigation meetings with the employee who is at the centre of the allegations of misconduct, as well as other employees who saw or have relevant information. They may also need to gather other evidence, such as CCTV and attendance sheets. What is vital is that the investigation considers evidence which both supports and challenges the allegations.

While the investigation is being completed, you may need to consider whether the employee should be suspended on full pay. You can only do this in certain circumstances, for example, if you think they continue to pose a risk to your business or that they could tamper with evidence.

To find out more about how to carry out these investigations, read our top tips.

Launch disciplinary proceedings

If there appears to be enough evidence to indicate misconduct, you will need to inform the employee in writing of the issue and invite them to a disciplinary hearing. When notifying them, you need to give them sufficient information to understand the allegations and what the potential outcomes of disciplinary proceedings could be. You will also need to give them copies of the evidence that will be discussed in the hearing and inform them of their right to be accompanied in the hearing.

The person who conducts the disciplinary hearing should not be the same person who carries out the investigation. If you are a small organisation, this can be difficult, therefore contact our Employment Law Adviser who can help you identify who is the best fit in your organisation.

At the disciplinary hearing, you should explain the allegations, go through the evidence and allow them to respond to the allegations. Once all the evidence has been considered, you should adjourn the meeting to make a decision as to whether and what disciplinary action to take.

Decide on what action to take 

When considering what the most suitable sanction is, you need think about what is fair and reasonable. This includes considering  how serious the misconduct is, if there are any mitigating circumstances, the employee’s length of service, how similar cases have been dealt with in the past and whether it is common practice in the workplace.

You may decide to take no action, give a written warning or final warning, dismiss or take other types of action short of dismissal, for example demotion. Actions such as demotion can only be taken if it is expressly included in the employee’s Contract of Employment and the employee agrees to it.

Gross misconduct

There are some acts which are so serious that they would call for dismissal without notice or pay in lieu of notice for a first offence, for example fraud or violence. These acts are known as gross misconduct and examples should be listed in your disciplinary procedure.

Employers often get caught out thinking they can fire them on the spot, but in fact, you will need to follow a fair procedure.

Appeals

If an employee thinks that the decision you have made is unfair or unreasonable, they may wish to appeal. The person responsible for the appeal should be someone who has not been involved in the investigation or the disciplinary hearing. The employee should be reminded that they can be accompanied and after the meeting, you should inform them of the decision in writing. This decision will be final.

Exclusive Bonus: Get the Definitive Employer’s Guide to Misconduct & Disciplinary Procedures to discover how to handle the disciplinary process like an HR expert.Download Now

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