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WorkNest survey unearths mounting delays in disciplinary processes – with most cases now taking 1 month or more to complete

Written on 23 January 2023

Every organisation has a set of rules, guidelines, and standards that employees are expected to adhere to. When employees violate these rules, disciplinary action may follow.

However, according to WorkNest’s recent survey of 356 employers, disciplinary processes are not only becoming more complex but are also consuming significant time and resources.

Indeed, what should be a streamlined HR procedure has now become a drawn-out ordeal for many employers, with 35% of cases now taking a full month to conclude. What’s more, 18% of employers reported that within their organisation, disciplinary matters typically drag on for three months or more.

But why?

Pinpointing the causes of a protracted process

Our research revealed a number of factors contributing to drawn-out disciplinary processes. Of these, employees taking sick leave due to stress or anxiety emerged as the biggest complication, with 23% of employers citing this as the most common cause of delays.

Pete Sewell, Employment Law Adviser and Solicitor at WorkNest, says: “The very nature of disciplinary proceedings, with its inherent tension and potential consequences, will naturally cause employees to feel stressed. Hopefully by following a fair and robust disciplinary process for all those concerned, these stresses are alleviated.  However, absences throughout the disciplinary procedure may delay the process and it is not uncommon for employees facing disciplinary action to go off sick as a delay tactic.”

Indeed, one respondent said that in their experience, “the really badly behaved employee invariably seems to go off sick with “stress and depression””. Another said: “Colleagues are now switched on to using the mental health card which backs off any further action against them until all other avenues have been looked into, i.e. Occupational Health reports, etc.”

Pete advises: “These cases will often turn on the facts. An employer may be able to proceed with a disciplinary hearing if any employee is on sick leave, but further investigation will be needed to understand if the employee is fit to attend the hearing and if there any adjustments required. Although this causes time delays, and inevitably would involve rescheduling, it limits contrived unfair dismissal or disability discrimination claims.”

In addition, roughly one in five (19%) employers face setbacks in disciplinary procedures due to the availability of internal staff. One respondent said: “As an organisation with a limited number of managers, investigations into disciplinary matters take considerable resource.” Another added: “Due to being a small organisation and shift work, the availability of all involved can sometimes be a logistical nightmare.”

Kirstie Smith, Trainee Solicitor at WorkNest, advises: “Whilst every effort should be made by an employer to investigate potential disciplinary matters without unreasonable delay, it is recognised that smaller employers may face additional hurdles due to their size and resources. In terms of the investigation stage, employers should bear in mind that employees do not have a statutory right to prior notification or to be accompanied. This can speed things up the investigation process, as well as the use of virtual meetings if logistics do not permit an in-person meeting. Employers may also wish to consider parachuting in HR Consultants to conduct the investigation and/or disciplinary stage, a service which WorkNest offers. The benefits of this are twofold: there is no impact on an employer’s internal resources, and employers will benefit from specialist HR professionals at the helm of the process.”  

According to qualitative data gathered by the survey, other factors contributing to a lengthier disciplinary process include union involvement, a lack of sufficient evidence to proceed, retaliatory grievances, and colleagues being reluctant to get involved.

Kirstie says: “A disciplinary process should ideally be a straightforward HR protocol, but for a plethora of reasons, many employers find themselves ensnared in a protracted process. Of course, in some cases, a longer process will be justified due to the severity of the conduct and the points to be investigated. However, our research findings highlight a pressing need for organisations to reevaluate their approach and streamline these procedures for greater efficiency and effectiveness. When carrying out such an evaluation, employers need to be mindful that efficiency should not trump reasonableness and fairness in a disciplinary process.”

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A nervousness to act

Beyond the evident logistical hurdles, our research reveals a deeper-seated issue: a widespread lack of confidence among employers when navigating disciplinary situations.

Just 37% of employers are “fully confident” in handling such cases, while approximately one in 10 (9%) admit they are “not confident” in their ability to deal with disciplinary matters effectively.

The fear of making legal mistakes emerged as a major apprehension, with 59% of employers identifying this as their biggest concern.

Pete comments: “It’s not surprising that employers are nervous about legal missteps. If an employer is perceived as treating an employee unfairly during a disciplinary process, it can be grounds for legal action. As well as unfair dismissal claims, failing to adhere to employment contracts or company policies during the disciplinary process can result in claims for breach of contract. In addition, employers must also ensure that disciplinary actions are fair and reasonable not based on protected characteristics factors such as race, gender, age, or disability, as this can lead to discrimination claims, or automatically unfair reasons, such as whistleblowing. Clear policies, training, and access to proper legal guidance are essential to minimising these risks and ensuring disciplinary situations are handled consistently, compliantly and with confidence.”

Considering the average award for unfair dismissal in the UK, before legal costs, was £11,914 in 2022/23, Kirstie says the looming fear of legal repercussions can unfortunately deter employers from taking necessary disciplinary actions even when warranted.

She warns: “This hesitancy, while seemingly protective, can be detrimental to the overall health and integrity of the organisation. Avoiding necessary actions not only compromises organisational standards but also risks perpetuating behaviours or situations that could escalate further. In essence, the reluctance to act due to legal fears can inadvertently foster an environment where misconduct goes unchecked, undermining trust, morale, and the organisation’s reputation in the long run. Avoiding necessary action may also cause difficulties if later, after repeated misconduct of the same nature, an employer eventually has had enough and wishes to impose disciplinary action.”

"In essence, the reluctance to act due to legal fears can inadvertently foster an environment where misconduct goes unchecked, undermining trust, morale, and the organisation's reputation in the long run."

Kirstie Smith, Trainee Solicitor
WorkNest

Common causes

Our research also shed light on the main types of disciplinaries employers encounter.

According to responses, absence – encompassing issues like excessive short-term absences, timekeeping challenges, and employees going AWOL – is the most common reason for disciplining employees (36%). Following closely behind, 30% of employers said disciplinary action is often related to poor performance – characterised by repeated errors, unmet targets, and subpar work quality –while 21% cited conduct issues – such as rudeness, lack of teamwork, and failure to follow instructions – as a common catalyst.

Pete says: “The fact absence tops this list isn’t surprising given the direct impact on workplace business operations and morale. Our research highlights the critical need to address absenteeism at its core. This can involve reactively managing issues when they arise, cultivating a supportive work environment, implementing wellness initiatives, and nurturing transparent communication channels, thereby mitigating the necessity for lengthy formal action.”

However, Pete urges caution over disciplining employees for poor performance.

He explains: “It’s disconcerting to see that almost a third of employers are disciplining employees for poor performance, as we would expect these issues to be more commonly dealt with through the separate performance management procedure or separated out within the disciplinary process to limit claims of unfairness. It’s important that employers distinguish between employees who can’t cook and those who won’t cook. If the employee is capable of doing what’s required but isn’t – perhaps because they are lazy, distracted, turning up late or refusing to carry out reasonable instructions – then disciplinary action may be warranted. However, if they are trying hard but still struggling to perform by not showing the appropriate skills, ability or knowledge to the role, despite being given the appropriate training and support, a performance management process is likely to be more appropriate.

“If it’s unclear which scenario you’re dealing with, and as part of a reasonable process, it’s advisable to investigate with the employee and then take a view. If in doubt, seek advice.”

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Need help dealing with a disciplinary?

WorkNest’s Employment Law experts can advise on everything from how to approach the initial conversation with an employee, straight through to how to handle a disciplinary process and potential dismissal.

As part of our unlimited, fixed-fee service, you’ll work with a small team of specialists who will not only provide advice but also assist in drafting necessary documents and correspondence. This ensures that you have a well-documented trail, demonstrating adherence to the correct procedures and ultimately protecting your organisation.

And if you’re daunted by the prospect of managing hearings, investigations or appeals, our seasoned HR Consultants can be parachuted in to conduct these for you. They can even train your team so that they are better equipped to handle these matters fairly and effectively in future.

For advice and support on your specific situation, call 0345 226 8393 or request your free consultation below.

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