Disciplinary: a word that both employers and employees dread. No employer wants to have to go through the process, and no employee wants to be on the receiving end of it. But unfortunately, there are times when disciplinary action is necessary.
However, all too often we see cases where employers have not followed the correct procedure or have not acted in a fair and reasonable way. This can lead to a case being brought to a tribunal, which cost employers both time and money. Not only could the employer be ordered to pay compensation of up to 25%, but they could also be publicly shamed if the case is widely reported.
That’s why conducting a fair disciplinary process is important for UK employers to avoid any potential repercussions from a tribunal. And in order for a UK employer to avoid any penalties, it is important that they follow both the ACAS Code of Practice for disciplinary and grievance procedures and their own disciplinary policy.
The ACAS Code of Practice for disciplinary and grievance procedures sets out the minimum standards that UK employers must adhere to when conducting a disciplinary. This includes ensuring that employees are given clear warnings, carrying out a fair investigation, and allowing the employee to appeal the decision.
On top of following the ACAS Code of Practice, UK employers must also have their own disciplinary policy in place. This policy should be clear and concise, and should set out the company’s expectations for employee behaviour. It should also outline the disciplinary procedure that will be followed in the event of an incident. This should be in line with the ACAS Code of Practice for disciplinary and grievance procedures.
If you’re a UK employer and you’re not sure whether your disciplinary policy is up to scratch, we’ve listed 11 common mistakes UK employers make during a disciplinary, and how to avoid them:
Mistake #01: Not issuing a previous warning (as appropriate)
Note how ‘as appropriate’ has been placed in brackets. This is because there are certain circumstances where issuing a warning may not be appropriate. For example, if the employee’s behaviour is so severe that it warrants immediate dismissal, then a warning would not be necessary.
However, in most cases, it is appropriate to issue a warning before moving on to a disciplinary. This gives the employee a chance to improve their behaviour or performance, and it also provides them with an opportunity to reflect on their actions.
If an employee does not receive a previous warning, then this could be used as evidence against the employer in a tribunal case for an unfair disciplinary.
Mistake #02: Not informing the employee of possible consequences of the disciplinary at the outset
When an employee is first summoned to a disciplinary meeting, they should be given an idea of what the possible consequences could be at the outset. This could be anything from a written warning, final warning to dismissal.
Not informing the employee of possible consequences at the outset could be seen as unfair by a tribunal.
Mistake #03: Not being clear about the nature of the allegation or providing evidence to back up allegations
When issuing an invitation to a disciplinary meeting, the employer should be clear about the nature of the allegation. This means providing specific details about the behaviour or performance that is being questioned, and supplying evidence to back up these allegations.
If the employer is vague or unclear about the nature of the disciplinary, this could be seen as unfair by the employee. And, if the employer cannot back up their allegations with evidence, then this could be used as evidence against them in a tribunal case.
Mistake #04: Factoring employees past complaints and/or grievances
If an employee has raised any complaints or grievances in the past, this should not be taken into account when deciding on the outcome of a disciplinary. The employee should be treated fairly and equally, regardless of any previous complaints or grievances.
If the employer does take an employee’s past complaints or grievances into account when deciding on the outcome of a disciplinary, this could lead to victimisation claims under the Equality Act 2010.
Mistake #05: Pre-empting the outcome before all the facts are established
A common mistake that employers make is to pre-empt the outcome of a disciplinary before all the facts are established. This means making assumptions about what the outcome will be, without considering all of the evidence.
Making assumptions about the outcome of a disciplinary can lead to unfairness and bias. So, it’s important to consider all of the evidence before making a decision.
Mistake #06: Unreasonable suspensions
Not every disciplinary requires a suspension. There needs to be good reason for making that decision. For example, if an employee is suspected of gross misconduct, a suspension might be necessary to protect other employees or company property.
However, if an employer decides to suspend an employee without good reason, the employer is breaching the implied term of mutual trust and confidence and could risk exposing themselves to a wrongful or unfair disciplinary or dismissal claim.
Mistake #07: Having the same person deal with the whole disciplinary process
For a fair disciplinary process, a different person should be responsible for carrying out the investigation, disciplinary hearing, and appeal stage.
If an employer has the same person dealing with the whole disciplinary process, this could be seen as a conflict of interest. And, if the case goes to a tribunal, the employer could be asked to prove that there was no conflict of interest.
While it is not always practicable for smaller organisations to have a different person for each stage of the disciplinary, larger organisations need to be ensuring that different people handle different stages of the disciplinary process.
Mistake #08: Not informing the employee of their right to be accompanied
It is the employee’s statutory right to be accompanied at a disciplinary hearing by either a work colleague or trade union official.
If an employer does not inform the employee of this right, the disciplinary hearing can be deemed as unfair at a tribunal. Not only this, but employers can also be fined up to 2 weeks’ pay for each employee that was subject to the disciplinary process.
Mistake #09: Not keeping accurate documentation
When conducting a disciplinary, it is important to keep accurate and up-to-date records. This includes any correspondence with the employee, witness statements, meeting notes and outcome of the hearing.
If an employer does not keep accurate documentation, they could be asked to explain why at a tribunal. And if they cannot provide a good reason, the tribunal could find that the disciplinary was unfair.
Mistake #10: Not giving the employee the right to appeal
Once a decision has been made at a disciplinary hearing, the employee has the right to appeal.
If an employer does not give the employee the right to appeal, this could be deemed as unfair at a tribunal. So to ensure natural justice, an employee should always be given the right to appeal.
When an employee is given the right to appeal, they should be provided with details on who to appeal to and the timelines in which they have to appeal. They should also be given the opportunity to present new evidence that was not available at the original hearing and be able to state why they believe the decision made was wrong.
Mistake #11: Delays in dealing with the disciplinary
While it is important to take the time to properly investigate a disciplinary case, employers should aim to deal with the disciplinary in a matter of weeks – depending on the complexity of the case.
If an employer takes too long to deal with the disciplinary, this could be deemed as unfair at a tribunal – especially if the employee has been left in limbo during the process.
To ensure a fair and timely disciplinary process, employers should set out clear timelines from the start and ensure that they are adhered to. If there are delays, employers should update the employee on why there is a delay and when they can expect a resolution.
Conducting a fair disciplinary process is important for both the employer and the employee. Not only does it ensure natural justice, but it also protects employers from possible repercussions at a tribunal. By avoiding these 11 common mistakes, UK employers can help to ensure a fair disciplinary process.
If you have any questions about the disciplinary process, or if you need help conducting a disciplinary, please get in touch.