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Published 2 September 10
Any formal disciplinary action should follow the principles set out in the Acas (Advisory, Conciliation and Arbitration Service) Code of Practice on discipline and grievances at work.
The Code of Practice is comprehensive yet allows a degree of flexibility to account for the complicated nature of the issues that may have to be dealt with under a disciplinary procedure. The Code of Practice can be accessed here.
Before taking formal action on a disciplinary matter a full investigation should take place, taking into account the following points:
- The circumstances and consequences of the alleged breach of discipline.
- The employee's job, experience, service length and previous disciplinary record.
- The evidence of any witnesses.
- Any recent changes to the job.
- Any previous related incidents.
- Whether the employee has received appropriate training.
- Any mitigating circumstances, such health or domestic problems, or provocation.
Taking these factors into account, an employer should review the evidence and determine whether there is any case to answer, or whether the case is serious enough for disciplinary measures, or if an alternative to disciplinary action is more appropriate, such as an informal meeting to discuss problems, or redeployment.
In line with the Code of Practice, a disciplinary procedure is likely to include the following steps:
- A letter from an employer to the employee setting out the issue.
- A formal hearing for both parties to argue their case.
- The opportunity for the employee to appeal the employer's decision.
Where any meeting or hearing is held that could result in disciplinary action or a formal warning, an employee has a statutory right to be accompanied by a fellow worker or trade union official.
The Code itself does not define exact timescales for action, but it is important to deal with issues promptly, for example within seven or 14 working days, while still allowing sufficient time for employees to prepare themselves for hearings and also for employers to fully investigate the matter. Also, some degree of fairness and flexibility is required when setting dates and venues for meetings, to allow employees, the people accompanying them and any witnesses to attend.
It is important to deal with discipline and grievance issues
fairly, allowing thorough investigation and giving employees the
opportunity to state their case, in order to avoid an employer
being taken to an employment tribunal and punished by being found
not to have taken disciplinary action against an employee in a fair
Where misconduct is alleged, the employee should be told in writing of the allegations before any formal meeting is held. In a formal meeting, the employee should be allowed to answer any allegations and the facts investigated and any witnesses offer evidence. After this the matter could be dropped or the employer can issue a verbal warning, a written warning, or a final written warning, if necessary.
Dismissal should only be contemplated in instances of serious misconduct after thorough investigation. Where serious misconduct occurs, it may be appropriate to bypass a stage in order to deal with the matter quickly.
After a warning is issued, an employee should be given time to
improve their conduct.
As a first step the employer and employee should meet to agree an improvement plan - which should be set-out in writing - which should define the degree of poor performance, a realistic timescale for improvement, any training or support to be given to the employee, and a date for a performance review.
If the employee's performance after the review is unimproved the employer can consider taking formal disciplinary action which could result in the issue of a verbal or written warning. After a further review, if performance still has not improved, the employer can consider issuing a written (or final written) warning. Dismissal would be seen as a last resort after giving the employee time and opportunity and any assistance necessary to improve their performance.
Bear in mind that employees have a right to be accompanied at
meetings or hearings which could result in a formal warning being
issued or disciplinary action taken.
Where an employee offers a satisfactory explanation for their conduct or performance, the hearing can be stopped immediately and no further action need be taken. It may also be necessary to stop the hearing if the employee becomes distressed or if further investigation seems necessary.
Should an employee raise a separate grievance during a disciplinary hearing, it may be necessary to stop the meeting and deal with the grievance first.
Following a disciplinary hearing, the employee should be informed in writing of:
- Any disciplinary penalty.
- Why this decision has been taken.
- Any specific improvement that is required from them.
- How long any warning will remain in force.
- What will happen if their bad performance or misconduct continues.
- That they have the right of appeal and an explanation of how they would carry this out.
If possible, an impartial third party should attend the hearing
to act as a witness to the proper conduct of the hearing. Someone
should also be present to take notes.
An employee has the right to appeal against an employer's decision following the disciplinary meeting. A deadline should be set for an employee to notify their employer of their intention to appeal, for example within ten working days.
An appeal hearing should be held without unnecessary delay. Although often impractical to organise in a small business, the person hearing the appeal ideally should not be the same person who heard the initial hearing. Where this is not possible, they should act impartially and make sure they review the original decision carefully, taking the reasoning behind the appeal and any new evidence since the earlier decision into consideration.
The employee should be informed in plenty of time to enable them to prepare their case. Again, employees have a right to be accompanied at meetings or hearings where a formal warning or disciplinary action may be confirmed; an impartial third party should attend to act as a witness, and notes of the hearing should be taken.
After the hearing, the employee should be notified in writing of the final decision and the reason for it as soon as possible.
For more advice on disciplinary issues and also on employee grievance procedures, see Business Link