Guide to Handling Disciplinary Matters

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The ACAS Code of Practice and Guide

• The Acas Code of Practice on Disciplinary and Grievance Procedures provides practical guidance and sets out principles for handling disciplinary matters in the workplace (note that the Code was revised in March 2015 to reflect a case law development on companions at disciplinary and grievance hearings. See ‘The right to be accompanied’ below).

• A failure to follow the code’s recommendations will not, on its own, make an employer liable to legal proceedings. Employment tribunals will, however, take the code into account when considering relevant cases. A failure to adhere to the code’s recommendations may not only, therefore, render a dismissal unfair but may also result in an increase in compensation awarded to an employee.

• This is because the Employment Act 2008 allows employment tribunals to uplift or decrease an unfairly dismissed employee’s compensation by up to 25 per cent because of any unreasonable failure on the part of the employer or employee respectively to comply with any provision of the code.

• The code is complemented by the Acas guide, Discipline and grievances at work in which extracts from the code are reproduced and accompanied by more detailed practical advice and guidance. The guide specifically states that employment tribunals are not required to have regard to any guidance it contains that does not form part of the code.

Disciplinary rules and procedures

• All employees must have a written statement of terms and conditions of employment which must contain disciplinary rules and procedures or refer the employee to some other easily accessible document containing those rules and procedures.

• It is good practice to have clearly written disciplinary rules and procedures which comply with the provisions of the Acas code.

• Disciplinary rules and procedures may be contractual if they are incorporated into the contract of employment. This can, however, be avoided by expressly stating that the rules and procedure do not form part of the contract of employment.

• The potential disadvantage of a contractual procedure is that an employee may sue an employer for breach of contract if the procedure is not properly adhered to.

Scope – capability/performance issues

• The primary purpose of disciplinary rules and procedures is to deal with conduct issues. However, some employers draft their rules and procedures so that they also apply to performance issues, and indeed the Acas code specifically states that “disciplinary situations include misconduct and/or poor performance.”

• Ideally there should be a separate capability procedure. At the very least, the disciplinary procedure will need to be adapted to reflect the fact that it is a performance issue being dealt with rather than a conduct issue. However, even if there is a separate performance or capability procedure, the basic principles of fairness set out in the code should be followed, albeit that they need to be adapted.

• Unsatisfactory performance includes situations where an employee fails to produce work to the required standards (which may be about quality of work, quantity of work or a failure to produce work on time). Only in rare cases (for example, gross negligence resulting in extreme consequences) would it be appropriate to dismiss an employee summarily for poor performance.

• Although dismissal for poor performance may be fair (‘capability’ is a potentially fair reason for dismissal), dismissal should only ever be a last resort. A dismissal will not be fair unless the employee has been given a series of warnings and an opportunity to improve (with realistic targets and reasonable timescales).

Disciplinary rules

• Clear rules help employees to understand what is expected of them and set the employer’s standards. They also help employers to act fairly and consistently.

• It is essential that the rules are easily accessible to all employees.

Ordinary misconduct

‘Ordinary’ misconduct should not result in summary dismissal. But failure by an employee to improve his or her ‘ordinary’ misconduct after warnings (normally a minimum of two) and over a period of time may result in a dismissal with notice.

Examples of acts constituting ordinary misconduct include:

• poor timekeeping

• unauthorised absence

• misuse of employer property

Gross misconduct

Disciplinary rules should make it clear to all employees what types and levels of misconduct will be regarded as gross misconduct justifying summary dismissal (ie dismissal without notice or pay in lieu of notice). The ACAS Code of Practice on Disciplinary and Grievance Procedures states that disciplinary rules should give examples of actions that the employer regards as acts of gross misconduct. The code also points out that these will vary according to the type of organisation and its line of business.

Examples of acts constituting gross misconduct include:

• theft of property belonging to the employer, an employee or a customer

• any type of fraud or other dishonest conduct

• deliberate damage to or unauthorised use of the employer’s property (including the employer’s computer system)

• a serious breach of the employer’s rules (including health and safety rules)

• gross negligence

• violent, abusive, dangerous, bullying or intimidating conduct

• serious insubordination

• downloading pornographic (or other inappropriate) material from the internet in breach of the organisation’s internet policy

• being under the influence of alcohol or illegal drugs whilst at work

• serious sexual, racial or other harassment.

The rules should expressly state that the list given is by way of example and is not exhaustive to allow an employer some flexibility in determining what constitutes gross misconduct.

Disciplinary procedures

All disciplinary procedures should be in writing and should set out the possible sanctions for misconduct and/or poor performance and the procedures which will be adopted by the employer in reaching a conclusion as to which sanction will be appropriate. Usually this will be a series of warnings and/or dismissal, but may include other disciplinary sanctions, including demotion.

According to the code, disciplinary procedures should also:

• be non-discriminatory

• provide for matters to be dealt with speedily

• allow for information to be kept confidential

• say what levels of management have the authority to take the various forms of disciplinary action

• require employees to be informed of the complaints against them and supporting evidence, before a disciplinary meeting

• give employees a chance to have their say before management reaches a decision

• provide employees with the right to be accompanied

• provide that no employee is dismissed for a first breach of discipline, except in cases of gross misconduct

• require management to investigate fully before any disciplinary action is taken

• ensure that employees are given an explanation for any sanction and allow employees to appeal against a decision

• apply to all employees or say if there are different rules for different employees

• ensure that any investigatory period of suspension is with pay and kept brief.

Acas code – additional recommendation

The Acas code contains a number of additional recommendations which all employers should seek to follow when conducting disciplinary proceedings. An employer may choose to include these principles in its disciplinary procedure to assist those conducting disciplinary proceedings, but whether they are included or not, should adhere to them during all such proceedings.

These principles include:

• raising and dealing with issues promptly

• acting consistently

• carrying out any necessary investigations

• informing employees of the nature of the issue and giving them the opportunity to put their case

• allowing employees to be accompanied at any formal disciplinary hearing and

• allowing a right of appeal.

Key principles – disciplinary hearing

• The employee should, without unreasonable delay, be invited to a disciplinary hearing, having been given reasonable notice, and told that the hearing is to be held under the employer’s disciplinary procedure.

• The employee must be granted the right to be accompanied at any formal disciplinary hearing by a work colleague or trade union representative of his/her choice.

• At the disciplinary hearing, the employer should explain the complaint against the employee and go through the evidence that has been collected.

• The employee should then be given a full opportunity to answer the allegations, explain his/her conduct, challenge witness statements, ask questions, present evidence and, if he/she wishes, call relevant witnesses to support his/her case.

• The employee should, after the hearing, be informed in writing of the outcome of the disciplinary process.

• The usual outcome of a disciplinary hearing should be a written warning, whilst a further incident of misconduct or a failure to improve performance within a set period after a first written warning would normally result in a final written warning.

• Any decision to dismiss the employee should be taken by a manager who has the authority to do so.

• Key principles – where the outcome is dismissal

• Where the employee is dismissed, he or she should be informed as soon as possible after the disciplinary meeting that his/her employment is to be terminated, the reason for the dismissal, the notice period and the date of termination.

• Employees should be permitted to appeal against any formal disciplinary action taken against them (including dismissal) if they feel, for example, that the action taken was wrong, unjust or too harsh.

• Appeals should be dealt with impartially by (wherever possible) a manager who has had no involvement in the case so far

• The outcome of the appeal should be communicated to the employee in writing as soon as possible.

Key principles – where the outcome is a warning

Where the outcome of disciplinary action is a warning, the warning should state:

• whether it is a verbal, written or final written warning

• the nature of the employee’s misconduct (or unsatisfactory performance)

• the change or improvement required

• the timescale for improvement

• the period of time the warning will remain ‘live’ (which, once stated, should be adhered to)

• what the outcome will be if there is further misconduct (or no improvement in performance), for example, further disciplinary action or dismissal

• the right for the employee to appeal against the warning.

Suspension

The disciplinary procedure should provide that the employer may suspend an employee on full pay pending completion of investigations. Employees should not, however, suspend an employee for the sake of it; suspension should only be used if it is necessary to enable the employer to investigate a matter properly.

An employer considering suspensions should think carefully and consider all other options – even where there are reasons to consider a suspension a temporary adjustment to the employees working arrangements can remove the need to suspend such as:

• Being moved to a different area of the workplace

• Working from home

• Changing their working hours

• Being placed on restricted duties

• Working under supervision

• Transferring them to a different role within the organisation (albeit one of a similar status to their normal role but under the same terms and conditions of employment).

Suspensions can have a damaging effect on the employee therefore the suspension and the reason for it should be kept confidential. If it is necessary to explain the employee’s absence, an employer should discuss with them how they would like it to be explained to colleagues and or customers.

An employee should be provided with a suspension letter than includes:

• The reasons for the suspension and how long it is expected to last

• Their rights and obligations during the suspension e.g. if they are required to be contactable during normal working hours

• A point of contract (such as a manager or HR professional) and their contract details for the employee during

• That the purpose of suspension is to investigate and is not an assumption of guilt

• Employees should usually receive their full pay and benefits during a period of suspension unless:

• they are not willing or are able to attend work (for example because they are ill)

• there is a clear contractual right for an employer to suspend without pay or benefits.

An employee should be kept regularly updated about their suspension, the ongoing reasons for it and how much longer it is likely to last.

Regular contact should be maintained between the employee and their manager and/or point of contact during the suspension. It is important that the employee is able to contact someone at the workplace to discuss any concerns they may have.

As part of a disciplinary procedure, an employee may be asked to not communicate with other staff while they are suspended. An employer should highlight that the employee still has a right to be accompanied by a trade union representative or work colleague at any disciplinary hearings.

Carrying out investigations

Every allegation of misconduct should be properly and impartially investigated before formal disciplinary proceedings are started, in order to establish all the facts relevant to the case. This will be particularly important in cases of alleged or suspected gross misconduct.

An investigation may, for example, involve reviewing the employee’s personnel record (for example, to check unauthorised days off or incidents of lateness) and interviewing other employees, customers or third parties. Any allegations made against an employee will need to be kept confidential and communicated only to those who have a role in the investigation.

As part of the investigation, the employee who is accused or suspected of misconduct may also have to be interviewed. The purpose of an investigatory interview will be to establish facts only, and not to judge the employee, or make any decision about what action to take. It is important to ensure that no disciplinary action flows directly from an investigatory meeting.

It is also important that the person conducting the investigation is not the same manager who conducts any subsequent disciplinary proceedings. This may be difficult in smaller organisations. But where possible, the two stages (investigation and disciplinary proceedings) should be separate and handled by different people.

If an employee is dismissed, and then seeks to claim unfair dismissal, an employer must be able to show, in order to satisfy an employment tribunal that dismissal was fair, that the decision to dismiss was only taken following a thorough investigation and that, based on that investigation, there was a genuine belief, based on reasonable grounds, that the employee had committed the act of alleged misconduct. There is no need for proof beyond reasonable doubt. The manager conducting the investigation should decide on the balance of probabilities (having weighed up all the evidence), whether there is a case to answer. If so, the outcome of the investigation should be a recommendation to invoke the disciplinary procedure; if not the matter should be dropped. In both cases, the employee should be informed of the outcome in writing.

Witness evidence

During any investigation into alleged misconduct, the rights of third parties (for example, witnesses) may need protecting so that they feel comfortable about speaking openly without fear of recrimination. Some witnesses may want to remain anonymous, and if there is a good reason for this, the request should be respected.

This can, however, be a difficult issue for an employer. While the employer will want to respect the wishes of the witness and thereby maintain his or her trust and confidence, a failure to identify a third party whose evidence is important can hinder an investigation and even compromise a disciplinary procedure. The necessity of identifying a third party will need to be assessed and a balance struck between the witness’s request for anonymity and the accused employee’s right to a ‘fair trial’.

The crucial issue is to ensure that the accused employee is made aware of the allegations against him or her and given a full and fair opportunity to respond to them. This can sometimes be difficult if the employee is not permitted to know the identity of those who have given evidence against him or her.

Managers that are investigating disciplinary issues should be aware of the possibility that a third party witness may be biased or bear a personal grudge against the employee under investigation. This could distort his/her evidence. A witness to an alleged incident may also be genuinely mistaken. In-depth knowledge of the personalities of the staff giving evidence can help, but where there is any doubt, corroboration (confirmation from other witnesses) should be sought.

The investigating manager should also:

• question witnesses thoroughly, stressing the need for evidence to be given objectively

• check why a witness has requested anonymity, and that any fear of reprisal is genuine

• assess objectively whether a witness might have any reason to fabricate evidence

• where there is only one witness, or where a witness’s evidence is doubted, carry out further investigations in order to try to corroborate the information given.

• Following the acquisition of witness evidence

• Following the investigation and acquisition of evidence from witnesses, the employer should:

• (ideally) give the accused employee copies of all witness statements

• (if necessary) make a statement anonymous before providing it to the employee; this may be done, for example, by deleting the name of the witness, editing/rewriting the statement to conceal the identity of the witness or (where there are several witnesses) producing a new document combining all the evidence from the various witness statements, perhaps in bullet-point format

• if it is not possible to give the employee a copy of the witness statement without disclosing the identity of the witness, tell the employee what the statement says

• if the employee disputes any of the evidence provided in witness statements, make further enquiries of the relevant witness(es).

• It is important to bear in mind that employment tribunals can (and do) order disclosure of documents if they consider them necessary for a fair hearing of the case. So, even though the employer may have declined to provide a copy of a witness statement to an accused employee in order to protect the witness’s identity, they may have no choice but to disclose the statement for the purpose of the tribunal hearing.

Holding discplinary hearings and the principle of natural justice

Disciplinary hearings should be conducted fairly and conform to the principles of natural justice. Before any disciplinary hearing is convened, the employee should be given full written details of the allegations against him/her, including any evidence supplied by witnesses, and sufficient time to prepare for the hearing.

There is no prescribed format for a disciplinary hearing. The key points are that the manager conducting it should:

• hold the hearing in private

• explain the format of the hearing to the employee and introduce those present

• clearly and objectively explain the reasons for the hearing (in other words, restate the case against the employee) and explain any possible sanctions

• give the employee sufficient time to clearly state his or her case and allow any companion present to address the hearing (if the employee wishes)

• allow the employee to explain his/her conduct, challenge witness statements, ask questions, present evidence and, if he/she wishes, call relevant witnesses to support his/her case

• give fair and proper consideration to the employee’s views and, if necessary, postpone any decisions until further investigation is completed

• give full consideration to any mitigating factors put forward by the employee

• make sure any decisions are based on reasonable grounds and are not biased in any way

• adjourn the hearing for further consideration before reaching a decision. This may involve adjourning the meeting to another day if it transpires that further investigation is necessary.

• After the hearing, the manager should:

• communicate the decision clearly and allow the employee the opportunity to ask questions for clarification purposes

• confirm the decision in writing

• ensure that hearing notes and records are correct and filed properly

• ensure the employee is given the right to appeal.

The right to be accompanied

All workers have a statutory right to be accompanied by a fellow worker or trade union official where they are required, or invited, by their employer to attend any formal disciplinary or grievance hearing. Fellow workers or trade union officials are not obliged to agree to accompany a worker, and they should not be pressurised into doing so. Some employers may allow people other than fellow workers and trade union officials to accompany an employee (for example, a partner, spouse or legal representative). Whether an employee has a right to bring someone other than a colleague or trade union representative along to a disciplinary hearing will depend on the terms of their contract of employment.

Informal discussions, counselling sessions and investigatory meetings do not attract the right to be accompanied, unless the meeting could result in a formal warning or other formal outcome.

The right to be accompanied applies to any disciplinary hearing which could result in a formal warning being given to the worker, the taking of some other action against the worker by the employer or the confirmation of a warning issued or some other action taken. This, therefore, includes appeal hearings.

The code has recently been changed to make it clear that employers are not entitled to reject a worker’s choice of companion if that companion is drawn from one of the statutory categories, namely “a fellow worker, a trade union representative, or an official employed by a trade union” and the request itself is made in a reasonable manner. The code states that a request does not have to be in writing but that, for example, a worker should “provide enough time for the employer to deal with the companion’s attendance at the meeting” and let the employer “know in advance the name of the companion where possible and whether they are a fellow worker or trade union official or representative.”

At the hearing itself, the worker’s companion must (if the worker wishes) be allowed to:

• address the hearing

• put and/or sum up the worker’s case

• respond on behalf of the worker to any views expressed at the hearing

• confer with the worker during the hearing.

The companion may not answer questions in place of the worker (the employer has the right to expect the worker, and not his/her companion, to answer any questions put to him or her during the hearing).

Sanctions

Generally, the sanctions imposed following a breach of the disciplinary rules will be either a warning or dismissal. However, some disciplinary procedures do provide for alternative sanctions such as a period of suspension without pay or demotion. If an employer wishes to exercise a right to resort to these alternative sanctions, it should ensure that it has the contractual right to do so. If an employer suspends without pay without a contractual right to do so, he may well find himself facing an employment tribunal claim for breach of contract or unlawful deduction from wages.

Overlapping discipline and grievance

In principle, grievance and disciplinary issues can be dealt with concurrently. In many cases, however, employers may choose to deal with the two issues separately. This is often the best practice approach.

The code states that where an employee raises a grievance during a disciplinary process, the employer may temporarily suspend the disciplinary process in order to deal with the grievance. The code goes on to say that where the grievance and disciplinary issues are related, it may be appropriate to deal with them concurrently.

Employers should, however, be careful about combining the two issues. If, for example, an employee raises an allegation of discrimination after the disciplinary process has been invoked, then the disciplinary issue and the discrimination allegation should be dealt with separately – and by different managers wherever possible in order to avoid allegations of bias.

The importance of record keeping

All stages of the disciplinary process should be recorded in writing. It is important to have written evidence to show what information the employee was given, what was said at the hearing, what decision was reached, and so on. Employers should keep records detailing:

• the nature of any gross misconduct, misconduct or poor performance

• the employee’s defence or mitigation

• the action taken and the reasons for it

• whether an appeal was lodged

• the outcome and any subsequent developments.

A copy of the notes of the disciplinary hearing should be given to the employee (although in certain circumstances some information may be withheld, for example to protect a witness). Good practice is to ask the employee to sign and return a copy of the minutes to confirm that he or she acknowledges that they are an accurate reflection of what was said at the meeting.

An employee will be entitled to request and receive copies of the records held under the subject access provisions of the Data Protection Act 2018.

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