The Disciplinary process how and what you should be doing as an Employer or HR

The Disciplinary process how and what you should be doing

 

We deal with issues daily, advising, guiding, and protecting Employers when things go wrong in their workplaces, in the main issues may not arise but when they do, it really is imperative that as an Employer or HR you don’t just understand the process but follow it, failing to do so could leave you open to a claim in an  Employment Tribunal.

Generally, the seriousness of the incident/issue will set determine the process that as an Employer you should follow, it is no surprise that it is this area that fails time and time again.

In our article today we share with you what process you should follow and how to remain legally compliant, in a nutshell, HR and Employers should always follow the ACAS Code of Practice, whilst taking into consideration internal disciplinary procedures as set out in your Employee Handbook and/or Contracts of Employment.

 

Our article is in-depth, we make no excuses for this as it is such an important area, why not grab a coffee, relax, and take in the content…

 

We are covering:

• As an Employer do you really need to discipline your Employee?
• Understanding and following your own internal HR processes
• When why and how to suspend?
• How, when why and who should investigate

• How, when why, and who when conducting a disciplinary hearing
• The right to appeal?
• How to manage the process in SME’s

 

As an Employer do I need to really discipline my Employee?

This is a really important point to consider, as an Employer or HR you need to ‘stop and think’, is the matter/incident or issue is serious enough to warrant formal action or is it that it could be dealt with informally, that being said a meeting should still take place and followed up with a letter of concern, that way should a similar matter/incident, or issue arise again in a set period (normally 6 months) then formal action can be instigated.

Matters/incidents or issues of this nature may be one of the instances, for example:

 

• lateness
• errors in work
• dips in productivity
• meeting deadlines
• procedural errors (including absence reporting)

 

In all instances, it is important that your Employee understands what the matter/incident or issue is and that you have set your expectations of them in the future.

 

As an Employer should I have and follow my own disciplinary process?

As set in legislation you should have a Disciplinary policy within this you should clearly identify each stage, this would include any requirement of formal action, investigation the right to suspend, the disciplinary process, and the right to appeal.

We cannot stress enough, and that while you should follow your internal HR policies, these must meet the criteria as set out by the ACAS Code of Practice.

Once you have a good understanding of the areas above, you should start to plan the relevant stages, these are:

Stage 1 investigation  (and suspension where relevant)

Stage 2 disciplinary

Stage 4 appeal  (where required)

 

We inform and advise that each stage is as important as the other, importantly the investigation stage can be overlooked and, in some cases, missed out completely, you really must ensure that this stage is carried out fully, it may be that a suspension is required this may be prior to or during the live investigation stage, once again it should not be overlooked but should be used in accordance with the ACAS Code of Practice.

It is always wise (not always possible in SME’s) that any person linked/witness to the matter remains impartial and does not take part in the process, for each stage of the process, a different person (normally a Manager) should be used, this would be to investigate, carry out the disciplinary and any subsequent appeal, any errors in these areas could render the process unfair and lead to an unfair dismissal claim in an Employment Tribunal.

Our team provides expert assistance in these areas, and we always advise that you do seek assistance and support.

 

 

As an Employer how would I suspend my Employee and on what grounds?

You must only ever suspend an Employee where you have reasonable grounds to do so, there has been updated ACAS guidance in 2022 we advise that as an Employer or HR you follow this, and irrelevant to your internal process.

It is imperative that your Employee is only ever suspended where there is no other alternative, that suspension should never be an act of punishment, nor should it be a ‘knee jerk’ reaction.

It should be instigated sparingly in businesses, and as a fair and reasonable course of action, in particular, where an Employee has not been afforded time to give their side of events, outline any mitigation, and in recent case law claimants have won.

Here are some basics when considering suspending an Employee:

 

• the allegation, is it deemed serious enough, how does it impact your Employees role, clients, and customers, is there a risk involved?
• is there an alternative, a move in location, role, tasks?
• have you got your Employee’s side of the matter/incident, or issue prior to suspension? this forms part of the investigation stage, in the absence of their mitigation, reasoning, and or evidence; you may be biased in your suspension?
• have you agreed on a communication strategy, and protection for your Employee, confidentiality is important, at this stage it is important to remember suspension should not impugn guilt?
• how will you keep your Employee up to date with the investigation? By letter, or telephone, have you advised a timeframe?
• have you considered your Employees frame of mind at the time of suspension, mental health and well-being should be an important factor when dealing with suspension?

 

Suspension can have a detrimental effect on Employees, recent updates have been made to the advice and guidance on ACAS, we urge anyone embarking on a suspension to consider these factors on your Employee, whilst we appreciate that businesses need protection, we urge Employers and HR to support their Employees.

 

As an Employer how, when, and should I even investigate?

We simply cannot stress enough how important the investigation stage is, this sadly is overlooked, and in many instances missed out completely. There should be no reason not to investigate, the internal process should always include this stage, it is irrelevant to what business, the industry you fall into this is a process and should be followed.

We consider the investigation to be stage 1 in the process, it may be that a suspension needs to be carried out, we then advise that ‘part’ of the investigation is carried out then.

Upon any matter/incident or issue occurring you should then commence the process, you should establish who the best Manager is to conduct the investigation, and you should do so ‘quickly’, establishing what has actually happened, you would do this by gathering witness statements, and gathering evidence, by this stage you should start to build a clear picture of facts rather than hearsay.

An ideal way to gather all of these and collate everything you need, establish if there is a case to answer, and reach a decision on whether to progress the matter is an investigation report form (we can supply you with one of these).

Let’s recap on the basics during the important investigation stage:

 

• appoint an investigating Manager (ideally impartial to the matter)
• obtain witness statements, and ensure they are signed/dated
• copy any CCTV captured or that may be necessary for a fair process
• retain any tests, record results and batch numbers
• collect all relevant documentation useful to the investigation, emails, memos etc
• carry out the *investigation meeting with your Employee, taking verbatim notes, all parties sign/date (*part of the investigation may have taken place subject to any suspension taking place)

 

We strongly advise against the recording of meetings, should you opt to do this we strongly advise you obtain the full consent of all parties involved in line with the Data Protection Act 2018 in particular GDPR.

As there is no statutory right to be accompanied to an investigation meeting for your Employee, you need not invite them to the investigation meeting, (your internal policy may vary).

 

As an Employer how and when should I conduct a disciplinary hearing?

Assuming you have taken note of the guidance in stage 1 (the investigation) and the investigating Manager has decided the matter needs to be progressed to a disciplinary then we recommend that a fair process is once again followed.

It is the investigation Mangers responsibility to decide to progress based on their investigation, notify your Employee of the outcome, and the next steps, provide any and all the relevant information, evidence, and documentation and in a timely manner, they would also pass all of the details/documentation and evidence to the disciplining Manager.

Let’s recap on the basics of what the investigating Manager should do at this 2^nd stage:

 

• formally invite your Employee by way of a letter to a disciplinary hearing, clearly setting out the allegations including dates, and right to be accompanied by a Trade Union representative or colleague as afforded them in Section 10 of the Employment Relations Act 1999, the letter should identify the possible outcomes, if there are any similar unpent warnings these should be referred to and where the allegation may be considered Gross Misconduct the Employee should be made aware the disciplinary could lead to dismissal
• at the same time, send all the evidence and relevant information to your Employee
• your Employee should be afforded at least 48 hours notice of the disciplinary hearing

 

We strongly advise against the recording of meetings, should you opt to do this we strongly advise you obtain the full consent of all parties involved in line with the Data Protection Act 2018 in particular GDPR.

Please note the Disciplinary Hearing Manager officer should be different from the Investigating Manager.

Let’s look at what happens at the Disciplinary hearing and what should they do at this 2^nd stage:

The Hearing should take place on the date/time as advised, notes should be taken at the hearing, and these should be signed and dated by all parties; once carried out the outcome of the disciplinary hearing should be communicated in a professional yet effective manner.

We advise a professional approach; Let’s take a quick look:

 

1. always email, (use read and delivered receipt) and also post the letter (by recorded delivery) to your Employee.
2. The outcome letter, should be concise, outline the sanction, and duration, and outline the reasoning behind your decision, importantly it must contain a section that notifies your Employee of their right to appeal, who to, and the timeframe to do so.

 

Subject to the specific needs of your individual Employee, these may be their capability requirements, you could, in addition to the above contact them by telephone to provide the outcome of the hearing.

 

As an Employer what should I do if I receive an appeal?

If you have followed a fair process in the first instance then any appeal would be unlikely, should your Employee submit an appeal then once again you should follow a fair process, this would be considered the 3^rd stage.

You should appoint another Manager, someone impartial to the matter, that way they can take a fresh viewpoint on the matter. You can hear the appeal in a couple of ways, let’s take a look at how:

 

1. a table-top review of all the evidence and the appeal that your Employee has submitted
2. a rehearing, this means going over all the evidence again and considering the points your Employee has submitted

 

It is important that you refer and review your process prior to reaching a decision as they may not be included.

Let’s take a look at what you should do if they are both included:

 

1. A Rehearing: it may be appropriate that, given the evidence submitted by your Employee that a rehearing takes place, thus ensuring the new manager for the appeal can get first-hand knowledge of everything that occurred, go over all the points your Employee raised at the disciplinary, so that a fair hearing can take place

1. A Table-Top Review: only if your process allows, in this instance, it may be appropriate to carry out the appeal without another hearing; ideal in cases where your Employee has failed to put forward significant or any evidence to support why the decision was wrong at the disciplinary stage. Each appeal case should be judged on its own merit as to whether a table-top review is appropriate

 

The Appeal Hearing Manager should formally invite your Employee to the Appeal Hearing by way of a letter, including the right to be accompanied by a Trade Union representative or colleague as afforded them in Section 10 of the Employment Relations Act 1999, the letter should identify the possible outcomes, that being, sanctions may remain or be revoked if there are any similar unspent warnings these should be referred to.

At the Appeal Hearing, verbatim notes should be taken, and all parties sign/date.

As always, we strongly advise against the recording of meetings, should you opt to do this we strongly advise you obtain the full consent of all parties involved in line with the Data Protection Act 2018 in particular GDPR.

In either 1 or 2 once the Appeal Manager has reached a decision this should be provided to your Employee by them, we always suggest a professional approach.

Let’s take a quick look:

 

1. always email, (use read and delivered receipt) and also post the letter (by recorded delivery) to your Employee.
2. The outcome letter should be concise, outline what has been discussed, re-looked at, what has been upheld/not, where a sanction remains outline the duration, and the reasoning behind your decision.

 

Subject to the specific needs of your individual Employee, these may be their capability requirements, you could, in addition to the above contact them by telephone to provide the outcome of the hearing.

The appeal process is the final stage your Employee can go through, this may be to revoke a sanction, reduce, or reinstate where they have been terminated.

In some instances, your Employee may feel their case has not been dealt with fairly, at this stage they may raise a claim with ACAS or submit a claim to an Employment Tribunal (an ET1).

In most instances, your Employee can only raise a claim for unfair dismissal if they have over 2 years service, unless they feel the dismissal was limited to a reason such as a protected characteristic, or maybe whistleblowing.

As a reminder and as we always advise, the 2 years service rule is not the most important factor, claims at employment tribunals are commonplace where gross misconduct has been a factor, in this instance a claim could be pursued for wrongful dismissal.

 

As an Employer I am only a small business (SME), how am I meant to manage all of these processes?

Unfortunately, there is no difference under the ACAS Code of Practice and a clearly defined expectation that any size of business should follow a fair and reasonable process when following the disciplinary procedure. The ACAS Code of Practice states “in misconduct cases, where practicable, different people should carry out the investigation and the disciplinary hearing”.

It is also safe to say that in tribunals there is an expectation that Employers follow to use the available advice, guidance, and assistance in the UK, this is readily available to provide Employers with the help and support they need to manage their internal HR and people.

Unfortunately, and as noted many times in the tribunal a failure to do so, and a failure to follow the ACAS Code of Practice could result in a 25% uplift of any tribunal claims that your Employee may win.

We outsource HR Outsource HR and Employment Law to many size businesses; we offer our support regularly to Employers who may need support facilitating the disciplinary process for them.

 

 

How can we help?

We are experts dealing with your HR and Employment Law matters, we can assist you with any type of investigation, suspension, disciplinary, and appeal, we can also assist with policy writing and are happy to do so, you can contact one of our team today and we can assist you; contact us on: 0333 0069489 or email us on: [email protected]

 

 

 

 

Disclaimer

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