Welcome to this, RGE Solutions Ltd, short presentation. Disciplinary problems can arise in any organisation, no matter its size, be it poor time keeping, underperformance or general misconduct. If conduct or performance does not improve, or the employee is guilty of gross misconduct then the ultimate sanction open to an employer is the dismissal of the employee. The information contained in this e-learning course is based on the minimum requirements required for legal compliance. However, mere compliance with a procedure will not make an employers actions fair if they do not operate the procedure fairly and the precise requirements will depend on the particular circumstances of a case. This presentation is intended for general guidance only.

By the end of this course you should be, aware of the legal requirements in respect of disciplinary procedures, know the difference between misconduct and gross misconduct, be able to describe the stages in a disciplinary procedure, know how to conduct an investigation, and know how to conduct a disciplinary meeting.

No matter the size of an organisation good industrial relations and the law require that an employer should act reasonably and comply with certain statutory requirements.   The Employment Rights Act 1996 makes it a statutory requirement that all employees must, within two months of the commencement of their employment, be issued with a written statement of their principle terms and conditions of employment.   The Employment Rights Act sets out the mandatory terms that should be included in this statement. Either included in the written statement or issued as separate documents, but still within two months of the commencement of employment, an employee must be issued with copies of the employers disciplinary and grievance procedures.   For further information about Written Statements of Terms and Conditions of Employment, please refer to our e-learning course on Contracts of Employment.   In respect of dismissal, in judging the fairness or otherwise of the employer’s decision to dismiss, the tribunal must consider whether the employer has complied with the ACAS code of practice on disciplinary and grievance procedures and if they have not, can they show good reason from departing from the code. The Acas Code of practice is published under the authority of the Trade Union and Labour Relations Act 1992. Although not mandatory the Code on Discipline and Grievance is recognised by tribunals as being the accepted standard of good practice. In Clarkson International Tools v Short [1973] ICR 191 it was said “… those who seek to allege exceptional circumstance justifying a departure from the principles and practices set out in the Code must satisfy the court or employment tribunal that the situation was truly exceptional.” Where appropriate the information contained in this e-learning course complies with the ACAS code of practice. For further information relating to unfair dismissal, please refer to our e-learning course on Terminating Employment.  

There is no specific definition of gross misconduct; however, the courts have considered the following conduct to amount to gross misconduct. Theft. Deliberate dishonesty. Violence towards fellow employees or management. Deliberate damage to employers' property. Drinking alcohol or drunkenness at work. Insubordination and offensive language. Unauthorised use of a computer or tampering with a computer without authority. Gross negligence and incompetence.   However, what conduct amounts to gross misconduct will depend on the circumstances of a particular case.   The test established by the courts is, has the employee done something so serious that the employer does not want to employ him anymore because his misconduct is so fundamental to the contract of employment that it destroys the trust and confidence in the relationship so that the employment cannot continue and a fair or reasonable view is that they should not be given another chance?   If an employee is found to be guilty of gross misconduct the employer is entitled to dismiss the employee without the requirement of having given prior warnings. In such circumstances the employee may be summarily dismissed and is not entitled to receive pay in lieu of notice.   However, this is not to say the employer should not follow a fair procedure and undertake a full investigation. Employers should remember where an employee has been employed for 12 months or more he will have the right to make a claim of unfair dismissal.  

Employers and managers often make the mistake of letting minor matters pass without taking any action until matters reach a stage that there is no alternative but to start taking formal action under the company’s disciplinary procedure. As soon as an employer or manager realises that an employee is not meeting the required standard they need to take action, often the right word, at the right time, in the right way might be all that is needed. Failing to take action at an early stage, serves no one well and may only increase the likelihood of formal action being necessary.

Informal action is usually taken in respect of minor issues concerning either conduct or performance. This can be particularly helpful in small organisations where problems can be dealt with quickly and in confidence. After discovering the facts, speak to the employee concerned as soon as possible, do not leave to weeks after the event. Carry out the meeting in private. Be specific, do not complain in general terms, provide facts. Criticise the behaviour, not the person. Listen to the employee’s point of view. Do not drag the meeting on. Agree the way forward, agree the standard to be reached. Additional training, coaching or support may be agreed. Ensure the employee understands what is required and what will happen next. Agree reviews where appropriate. End on a positive note. Take care not to allow an informal meeting to turn into a formal disciplinary meeting. This would deny the employee rights such as the right to be accompanied, which is discussed later during this course. Make it clear that formal action will be taken if there is no improvement within the agreed timescale. Reviews should always be agreed and completed if the matter is one of unsatisfactory performance.  

An employee should not normally be dismissed for a first disciplinary offence unless it is gross misconduct. A company disciplinary procedure should normally establish a three stage process of a first written warning, followed by a final written warning, ultimately, if no improvement, culminating in dismissal. In certain circumstances, dependant on the seriousness of an offence, the first warning stages may be ignored and a final written warning issued. In cases of gross misconduct the employer may move straight to the dismissal stage. However, at each stage the employer should always investigate, hold a meeting before reaching the decision and allow the right of appeal.

Before undertaking any disciplinary action the facts should be collected. This is particularly important, a dismissal of an employee could be judged unfair by an employment tribunal if an inadequate investigation has taken place.   In the case where formal disciplinary action is being considered, wherever possible, it is good practice to have the investigation undertaken by a person other than the one who will make the ultimate decision.   As much information should be obtained as soon as possible. Memories can fade or become confused.   Remain focussed on the incident and not individuals.   Talk to the individual against whom action is being considered, taking care that it does not become a formal disciplinary meeting. The importance of this will become apparent when we cover the right to be accompanied.   Talk to any witnesses or other staff involved. Take statements or make notes as you go along. Remember a statement given in confidence should not be divulged to any other person.   Establish the facts; try to differentiate between fact and rumour.   Gather any documents or records relating to the problem and the individual. For example, disciplinary records, general work record, production returns, absence records etc.   If necessary the employee can be suspended during the investigation, this would normally be on full pay unless the contract says otherwise. This is not to be used as punishment.  

If after carrying out an investigation disciplinary action is being considered. The employee should be informed in writing of the allegation or allegations being made against them. Wherever possible full details of the allegation and any evidence supporting the allegation should be provided. The letter should also invite the employee to attend a disciplinary meeting and advised of his right to be accompanied by a work colleague or a trade union official. The employee should be given sufficient notice of the meeting to enable them to prepare and to arrange for their companion to attend.

You should prepare thoroughly for the meeting, there is no substitute for preparation. You should have all the relevant facts and documents including disciplinary, sickness, absence records, witness statements, your notes etc. As previously stated, the date for the hearing should allow enough time for the employee to prepare and arrange a companion if they want one. Ensure the employee has enough information for them to prepare their case. Arrange for a private room with adequate seating where there will be no interruptions. Where possible you should have a second manager to attend, as a witness and to take notes. This should not be the manager who would hear any appeal. At the meeting, start by introducing all in attendance, explaining their roles and confirm the allegation. Listen to the employee. This is important, you should not have made up your mind prior to the meeting and so anything the employee says will inform your decision. Summarise to ensure nothing has been missed. Adjourn the meeting so that you can reflect on what has been said and check facts where necessary. This can be for a short period or you may want to take some time to consider your decision. However, you should not take too long, 24 hours should be sufficient.

In reaching your decision you need to consider all the facts applicable to the case. Your consideration should include; Does your procedure point to the likely penalty? What is the employee’s disciplinary or work record? Is there a precedent, within the company, for handling this type of case? What reason was given for the action taken/not taken by the employee? How far did the action/inaction disrupt the work of the organisation? How far will a decision taken now set a precedent for the future? Overall, is the proposed penalty reasonable in all the circumstances

If there is no case to answer be prepared to drop the matter. This is not a sign of weakness and shows to employees you are prepared to operate the procedure fairly. If this is a first incidence of misconduct, issue a written warning setting out the nature of the misconduct and the change in behaviour required. If the matter relates to unsatisfactory performance Issue an improvement note setting out the problem, the improvement required, the timescale, review dates and any support or training the employer is to provide. If a first written warning has been issued and their has been no improvement or the matter is serious, but falls short of gross misconduct, a final written warning can be issued. Where a warning is issued the employee should be notified in writing , explaining why it has been issued and what will happen if there is no improvement or there is a repeat of the behaviour. The employee should be informed of how long the warning will remain on their record. Usually 6 months for a first and 12 months for a final written warning. Although a longer or shorter period may be specified in your procedure or may be appropriate to the particular circumstances of the case. The employee should also be notified of their right of appeal. Where the above procedure has failed to bring about the desired improvement then dismissal may follow. The dismissal and the reason for it should be confirmed to the employee in writing and again the employee should be advised of his right of appeal. Always keep records of any action you take. Remember the employee has a right to see such records under the Data Protection Act.

If an employee wishes to appeal against a disciplinary decision, written warning or dismissal, they must inform employer in writing. If the employee appeals the employer must arrange an appeal meeting, advise the employee of the date and advise them of their right to be accompanied by a work colleague or a trade union official. The appeal should be considered by, wherever possible, a different or more senior manager than the one who made the original decision. The appeal meeting should be conducted in a similar manner to a disciplinary hearing and all the circumstances considered when reaching the final decision. The decision of the appeal hearing is final.

We hope you have found this short presentation informative. If you we like to find out more about more about our services please visit our web site or contact us by e-mail or telephone.

Discipline in the Workplace Welcome www.rgesolutions.co.uk

Course Objectives be aware of legal requirements know the difference between misconduct and gross misconduct be able to describe the stages in a disciplinary procedure know how to conduct an investigation know how to conduct a disciplinary meeting

Legal Requirements disciplinary procedure issued to employees ACAS code of practice must act reasonably

Gross misconduct employee conduct destroys trust & confidence summary dismissal not entitled to notice MUST STILL FOLLOW PROCEDURE Investigate Meeting Decision appeal

Informal action (1) The right word, at the right time, in the right way might be all that is needed

Informal action (2) do it immediately (after confirming facts) carry out in private be specific criticise behaviour, not the person listen don’t drag it out or overdo it agree way forward

Formal Stages investigation meeting decision no action first written warning final written warning dismissal appeals

Investigation act promptly be objective talk to the employee witnesses facts documents records suspension

Disciplinary Meeting (1) inform employee in writing of allegation details and evidence invite to a meeting right to be accompanied sufficient notice

Disciplinary meeting (2) prepare thoroughly allow time for employee to prepare have another manager present repeat allegation listen to employee adjourn decision

Does your procedure point to the likely penalty? What is the employee’s disciplinary or work record? Is there a precedent, within the company, for handling this type of case? What reason was given for the action taken/not taken by the employee? How far did the action/inaction disrupt the work of the organisation? How far will a decision taken now set a precedent for the future? Overall, is the proposed penalty reasonable in all the circumstances Reaching the decision

Action drop the matter warning written warning/improvement note final written warning dismissal notify in writing period of warning keep records

Appeals employee notifies employer further meeting right to be accompanied more senior/different manager final decision

RGE Solutions Ltd Employment Law & Business Services www.rgesolutions.co.uk Info@rgesolutions.co.uk Tel: 0121 285 0120