One of the situations for which we most commonly provide advice and support is that in which employee(s) have acted in a manner considered unacceptable by their employer. The procedure for facing an employee with misconduct issues will vary from employer to employer and depend on factors such as the size of the company, the management structure and the policies and procedures in place, as well as the organisation’s culture.
We are able to offer employers a wide range of advice and support tailored to their company. There is no ‘one size fits all’ approach at Bridge – we adapt our strategy to your needs.
The level of support that we offer throughout the disciplinary process is up to you. If you wish to draft your own outcome letter before allowing us to review it, this is something we are happy to do. Alternatively, we can draft the letter in its entirety for your review before we then send it on to the employee. Our level of involvement is your decision and we are happy to do as much as is required.
First and foremost, any advice you receive from us is legally privileged, enabling us to carefully discuss and advise you on your case without any concerns that the information might be requested under a Data Subject Access Request or as part of the required disclosure under the Rule of the Employment Tribunal.
We’ve also had numerous successes advising, and conducting disciplinary processes on behalf of, businesses of various sizes. We find that, where we have advised an employer from the outset, employees very rarely make claims to the Employment Tribunal. In those rare cases that they do, the additional time will allow us to prepare a vigorous defence against these claims and assist with an argument against the reduction of compensation, should the employee’s claim be successful.
It can be stressful and time-consuming ensuring that the disciplinary process is carried out fairly. This is where we can help by alleviating the workload and making sure the procedure is carried out correctly. We can assist as much or as little as you would like.
Every employer is required by law to ensure that employees are aware of the disciplinary procedure and what will occur should there be an issue with their conduct at work. This must be outlined at the outset of their employment and readily available as their employment continues.
ACAS have published a Code of Practice and a best practice guide for managing the disciplinary and grievance processes. The Employment Tribunal will always consider if an employer has followed this best practice whilst considering dismissal for any misconduct, and it is therefore essential that employers follow its guidance – this is known as ‘procedural fairness’.
Failure to follow this procedure could result in the dismissal being considered potentially unfair, with the employee entitled to compensation as a result of the procedural defect. There are some legal defences that might be used in such an event to reduce compensation by proving that the employee would have left the company even if correct procedure had been followed. The public reputation of the employer would still bear a blot, however, and except in exceptional circumstances, they would likely still be liable for some compensation.
The ACAS Code of Practice encourages all employers to first of all try and manage any minor misconduct matters informally. Depending on the organization, this might be a chat over coffee or something more formal such as a regular supervision meeting in which notes are documented.
TOP TIP – We highly recommend that a short record be made of any conversation or informal discussion relating to misconduct. This record can then be relied on in any future disciplinary as evidence that misconduct was not restricted to a single occasion.
If the misconduct is serious enough that it exceeds any informal resolution the employer must commence a formal investigation. This investigation must be robust in order to be considered fair and, even where the employee has admitted to the wrongdoing, needs to gather all relevant evidence and involve interviews with all relevant witnesses. It is customary for organizations to ensure fairness and independence by having a different person investigate the grievance than they who will later undertake the formal grievance hearing. The primary purpose of a disciplinary investigation is to discern if there is any disciplinary case to answer, not to decide upon an outcome.
If there is a disciplinary case to be heard then the employee must be formally invited to a disciplinary hearing subsequent to the investigation. This invitation should be made in writing, with the employee given sufficient time to prepare and review the relevant evidence. The appropriate duration of time between the letter and the hearing will be determined by a number of factors, such as the level of the misconduct, the evidence gathered, whether the employee is suspended from work, and the guidelines defined in the company policy.
The employee is entitled by law to be accompanied by a colleague or trade union representative at the hearing. Individual circumstances, such as the need for an interpreter or any disabilities, should also be considered and catered for. In certain circumstances, employees may be permitted to bring their own legal representative. You should always seek advice where an employee requests to bring someone other than a colleague or trade union representative.
The employee’s representative is permitted to carry out several actions throughout the grievance hearing, such as putting forward the employee’s case, summarising their point of view and conferring with the employee. They cannot, however, answer questions on behalf of the employee.
Nowadays it is unusual to have witnesses attend the hearing. Your policy should, however, specify if witnesses are likely to attend as well as the procedure for managing them if they do. It is, however, more likely that witness evidence or statements will be contained clearly within the investigation report.
It is crucial that the employee clearly understands any evidence and allegations made against them during the disciplinary hearing and that they are given a fair opportunity to present, for the company’s consideration, any of their own evidence which might defend or mitigate their actions in any way.
Minutes should be taken during the grievance hearing to ensure an accurate record and the minute-taker given express permission to interrupt the hearing if necessary to ensure accuracy.
If further evidence needs to be gathered or witnesses questioned further, the hearing should be reconvened at a later date.
At its conclusion, the person chairing should always adjourn the hearing before arriving at a decision regarding an outcome. Contrary to committing to a decision during the hearing, taking the time to deliberate the conclusion will show, if the matter does proceed to Employment Tribunal, that what the employee had to say was carefully considered and all obligations were fulfilled.
The employee is entitled to receive the outcome of the hearing formally and in writing, with reasons the decision was arrived at clearly outlined. The outcome letter is an essential part of any disciplinary process as it exhibits what evidence was considered, what witnesses said, what the employee’s defence was and that the chairperson considered all facts whilst they made their decision.
Any disciplinary sanction should be fair and reasonable and used as a way of improving the employee’s future conduct. We highly recommend that employers accompany any sanction with a procedure for reviewing the progress of the employee throughout the warning period; whether this be through re-training, coaching, supervision or similar.
Finally, the employee has the right to appeal the decision. Your policy should state the timeframe within which they must lodge their appeal. If the appeal is made on the grounds that the grievance process was not followed fairly, employers have the opportunity to put right any procedural defects and, if necessary, should ensure that they do so. Other grounds might include new evidence that has come to light or situations in which the employee feels the decision arrived at to be too severe.
Gross misconduct describes a situation in which an employee errs so seriously in their employment (or even outside their employment where their actions relate to work or could potentially bring the company into serious disrepute) that an employer is permitted to dismiss them without notice. Usually, gross misconduct involves an act so serious that the trust in the employment relationship is irreparably damaged. The employee may have even been a danger to themselves or others.
IMPORTANT: this does not give you permission to dismiss them on the spot –proper investigation and hearing processes still need to be followed – but once this is complete, if you conclude that there has indeed been gross misconduct, you are then able to dismiss someone without their contractual or statutory notice.
|– Theft from employer
– Serious breaches of employment contract
– Deliberate damage to company property
– Gross negligence
– Serious insubordination
– Serious breaches of company policy or procedure
– Physical violence or threats of violence at work
– Serious intoxication at work
Misconduct describes an occasion on which an employee has acted at work in a manner that is unacceptable but would not usually be considered gross misconduct. Some instances are considered more serious than others and, in certain circumstances, it may be decided during a disciplinary meeting that an employee should be dismissed with notice. This is rare, however, and it is far more likely that, for serious matters, a final warning will be given.
|– Frequent lateness (after informal discussions)
– Failing to follow policies and procedures
– Misuse of company property / the internet
For an example of disciplinary rules, download our Disciplinary Rules document that you can tailor to your own workplace or contact us for more advice.
Suspensions should only be used in appropriate circumstances – they cannot be used as a means of punishment and should always be considered a neutral act by both parties.
Employers should also ensure they are contractually entitled to suspend an employee – we often encounter those who have failed to issue a contract of employment, for example. It’s also important that you always seek legal advice before suspending an employee.
Suspension usually occurs when allegations against an employee are so serious that they might be considered gross misconduct. You must, however, ensure that their suspension is implemented fairly and legally in order to counteract any claims that the decision to dismiss had been made prior to the act of dismissal. Some examples of fair reasons for suspension are: concern that the employee may conceal evidence or intimidate witnesses, or where the employee poses a risk if they remain in their role.
As soon as is possible, an employee should receive in writing the grounds for their suspension as well as the rules that they must follow while suspended. Any period of suspension must be kept to a minimum and should not continue indefinitely.
Waiting until it is too late
Clients frequently approach us for assistance in dismissing an employee whose conduct is particularly troublesome. Yet, when we enquire about their progress along the disciplinary process, many reveal they have failed to take the appropriate steps for ensuring that any dismissal they make is not considered unfair.
After applying the law to ensure that dismissal is fair and legal, we at BRIDGE adhere to one rule of thumb: if the dismissal arrives as a surprise to the employee, you likely didn’t follow the correct procedure. An employee should always be aware – prior to the fact – that their misbehaviour could result in dismissal.
Lacking a robust investigation
Disciplinary investigations are an essential opportunity for demonstrating that the decision you and the chairperson arrived at is based on sound and thorough investigation of the facts. This is especially important when it comes to gross misconduct and dismissal is a possibility.
Full and thorough investigation is necessary even where an employee admits to misconduct. As a means of example, picture a situation in which a retail employee has sold recalled goods to a customer. If the employee openly admits to selling the goods, you may believe this to be an easy case. Imagine, however, that the employee is dyslexic and, in fact, struggled to read the product code – surely, in this situation, they are not at fault, and your response should instead be to ensure that this does not occur again?
Deciding upon the outcome before, or during, the disciplinary hearing
It can be difficult to resist making pre-judgements, but the key to being a successful chairperson at a disciplinary hearing is to put aside your preconceptions and listen to the employee’s version of events with an open mind. We have, many times, worked with clients who were fairly set in their beliefs regarding the outcome, only to have these proved wrong when the employee was able to reasonably explain their actions.
These are the benefits of receiving legally privileged advice – you are able receive our guidance whilst venting your frustrations without worrying that they will be relied upon in court. What’s more, we’ll help you ensure that the outcome you arrive at is correct and legally sound, and that you have met your obligation of careful consideration.
Dismissing an employee on the spot
We know that certain employees can, at times, be frustrating and that, in the heat of the moment, you may inadvertently say something you didn’t mean. We’ve heard them all – “don’t come back”, “pack up your desk” and, as they say in Yorkshire, “don’t let the door hit out on the way out!”
The outcome we can achieve in this situation will depend on what exactly was said and how quickly the employee was contacted. Our advice is to call us when you begin to feel yourself getting frustrated and allow us to put a plan in place for managing the situation as a matter of urgency.
What does your contract or policy say?
This is where clear employment contracts and policies are essential. Any competent contract will inform employees that going on sick leave in either of these situations will result in them being placed on Statutory Sick Pay. This is usually a significant enough deterrent, meaning that only genuine sickness absences will be made during this time.
If an employee does goes go on sick leave at either of these times, you must weigh the risks of proceeding immediately against those of withholding the decision-making process. It’s highly recommended that you seek support at this time due to the wide range of options available to you: from making reasonable adjustments to the disciplinary process, to asking the employee to attend medical screenings to assess their ability to participate in proceedings.
An employee maintains the right not to be unfairly dismissed, so if they feel this to have occurred, then yes, they may attempt to make a claim at the Employment Tribunal.
In some cases, an employee might claim that their disciplinary was a result of discrimination and/or victimization. The amount of compensation that can be awarded to an employee as the result of a discrimination case is uncapped, so we highly recommend that every organisation has an Equality and Diversity Policy which they review regularly to ensure they are free from bias.