Discipline in the workplace

When an employee’s conduct or performance in the workplace falls below that which is acceptable to the employer this could lead to disciplinary action being taken by the employer. Such matters would normally be pursued by holding a “disciplinary meeting” and could, for example, relate to:

• failure to obey a legitimate order or instruction;
• absence without permission;
• persistent absence;
• poor timekeeping;
• failure to carry out an employee’s duties adequately;
• poor work performance (including a failure to keep up-to-date with technical developments);
• improper use of company equipment;
• breaches of an employee’s contract of employment; or
• breaches of the employer’s rules, procedures, policies or practices.

The Acas Code of Practice on Disciplinary and Grievance Procedures (Code), which was issued under section 199 of the Trade Union and Labour Relations (Consolidation) Act 1992, provides guidance on disciplinary situations. Employers are obliged to have in place a procedure for dealing with disciplinary situations. The procedure should be fair and transparent and be set out in writing. If there is no disciplinary procedure, then the employer should adopt the procedure prescribed in the Code.

Think about warnings when drafting contracts or policies

As process can be equally important as substance with formal discipline and dismissals, many employers favour a system which incorporates use of informal warnings (or verbal warnings) in addition to formal written warnings.

Another reason for potentially including informal warnings is the belief that most employees will respond better to an informal warning.

The difficulty with formal warnings can be that once an employee receives one, he or she may feel that his or her “card is marked” and lose enthusiasm or commitment to the role – especially if the warning relates to performance. This in turn, can then lead to a period where both employer and employee may feel there is an inevitability to the relationship not working, where the employer is waiting for an opportunity to escalate the issue to the next warning and possibly ultimate dismissal and the employee is demotivated and whose performance deteriorates. An employee could, as a result of receiving a formal warning become disruptive and demoralising with other employees.

Check your procedures and policies

Careful consideration to using informal warnings should be given to this issue at the time of drafting procedures and policies. If policies and procedures clearly state that informal warnings will be used for certain issues as a first step and as employer, you then do not follow your own procedures or policies, this may create legal risks for you – especially if the policies or procedures are contractual.

Another potential pitfall with informal warnings is that employers are often unclear about using them or don’t check procedures and policies and, in reality, an intended informal process, in reality, becomes part of the formal disciplinary process. Confusion in this regard may again create legal risks leading to costly mistakes by undermining an employee’s rights and entitlements.

Finally, whilst there are potential advantages of including informal warnings they are not applicable in all cases. Employers should always retain the discretion to dispense with informal warnings in favour of formal warnings in appropriate situations.

Careful consideration as to employee conduct

The main thrust of this article relates to the use of disciplinary action by an employer short of dismissal. However, in some situations, a warning will not suffice where the employee’s behaviour amounts to gross misconduct.

There is no hard and fast rule (or law) as to what constitutes gross misconduct. Employment policies and procedures commonly provide examples, such as, fighting or theft. Most will say words to the effect of: “this list is not exhaustive”. The main thing to consider is whether the behaviour by an employee, on a common sense basis, constitutes gross misconduct which could lead to summary dismissal or simply misconduct short of dismissal.

Investigate, don’t delay and be consistent

Disciplinary matters should be properly investigated in order to substantiate the allegations against the employee without unreasonable delay. In some instances this may require the employer holding an investigation meeting with the employee before proceeding to a disciplinary meeting.

An employee may need to be suspended with pay should the employee’s attendance in the workplace prevent the matter from being properly investigated. Suspension should be for the shortest period as possible.

Having completed the investigation and deciding that there is a case to answer, the employer should invite the employee to attend a disciplinary meeting. This should be in writing and provide as much detail as possible of allegation(s) against the employee setting out a chronology of events with dates, times, supporting documents and witnesses (if applicable) so that the employee can properly respond to those allegations.

The key to disciplinary matters is to deal with them quickly. However, disciplinary meetings should not be held so quickly as to deprive an employee from properly preparing for the meeting.

If the employee is not content with the decision, s/he may appeal against the decision in writing. Ideally the appeal letter should provide reasons why the employee is unhappy with the outcome of the disciplinary meeting. The employer should appoint an appropriate person to deal with the appeal. The appointed person then holds an appeal meeting with the employee and subsequently, having carried such further investigation as is necessary, provides the appeal decision in writing. This would normally be the end of the disciplinary process.

In some instances, it may not be possible for an employer fairly or effectively to deal with a disciplinary situations internally – for example, if the disciplinary relates to the owner of the business or the employee appeals the decision that was taken by the owner of the business – and may need to use an independent third party to act as the disciplinary or appeal officer.

Consistency is also important – employers should consider how they have previously dealt with similar situations with other employees. If the process or disciplinary action is different between employees, this could lead not only to claims for unfair dismissal (if the employee has two year’s continuity of service) but also a claim for some form of discrimination if a ‘protected characteristic’ (such as, sex or age) was the reason for the difference in treatment (where there is no qualifying period of employment needed).

Resolving employment disputes

To discuss an employment tribunal and dispute resolution please call our specialist employment law team on 01895 207892. Alternatively email your details to employment@ibblaw.co.uk