Where a disciplinary issue arises and you have a disciplinary procedure of your own, you must follow it. An employer who has a procedure but fails to follow it is inviting a claim for unfair dismissal.
If you do not have a disciplinary procedure of your own (or, if you do but it is inadequate) any Employment Tribunal will judge procedural fairness as against the ACAS Code of Practice.
Many disciplinary issues lead to Employment Tribunal claims. An Employment Tribunal has to consider:
1. Did the employer have a good reason to dismiss (e.g. misconduct, poor performance, etc)?
2. If so, did the employer follow a fair procedure leading up to the dismissal?
Most employers get over the first hurdle. Where most employers fail at Tribunal is at the second hurdle.
This demonstrates the importance of following a fair procedure in any disciplinary situation.
There are 3 essential elements to a fair disciplinary procedure:
1. Investigation
2. Disciplinary meeting
3. Appeal
1. Investigation
The extent of any investigation depends on the circumstances. For example, if an employee is caught stealing red-handed, not much investigation is required. On the other hand, if there is a matter that has been ongoing for some time involving a number of people, a great deal of investigation may be necessary.
You should consider whether it would be appropriate to suspend the employee pending the investigation. Some employers automatically suspend in cases of alleged gross misconduct - however, even in those cases, you should consider whether suspension really is necessary. Any suspension should be on full pay.
Once the investigation has been completed, a report should be prepared. If it is decided to go to a disciplinary meeting, a letter should then be sent to the employee inviting him/her to the meeting. That letter should set out the allegations and enclose all relevant documentation and witness statements. The letter should fix the date, time and location of the disciplinary meeting. There should be a reasonable period between the employee receiving the letter and the date of the meeting, to give the employee time to consider the papers and prepare his/her defence.
The letter should confirm that the employee has a right to be accompanied at the disciplinary meeting. By law, the employee is entitled to be accompanied by a work colleague or by a trade union official/representative. Your procedure may allow for other categories of people to accompany staff at such meetings (e.g. by a friend or relative).
2. Disciplinary meeting
Where practicable, the person conducting the disciplinary meeting should be different from the person who carried out the investigation. If your organisation is very small, this may not be practicable.
The meeting should be conducted in as calm a mood as possible. The person conducting the meeting should explain who is present. You should try and arrange for someone to be present to take notes of the meeting - these notes should be typed up afterwards but the original handwritten notes should be retained.
You should then go through the paperwork, ensure that the employee understands the allegations. The allegations should then be discussed. You may need to ask questions of the employee - any such questions should be answered by the employee and not by the employee's companion.
You should then allow the employee to ask any questions, raise any other points that they want to, and to make submissions.
It is always sensible to adjourn the meeting to consider matters. It may also be necessary to carry out further investigation depending on what is raised at the meeting.
Once the matter has been considered, the meeting should be reconvened and the decision announced. That decision will need to be confirmed in writing. The letter should set out the right of appeal.
3. Appeal meeting
If the employee appeals, an appeal meeting will need to be arranged. Again, the employee has the right to be accompanied at the appeal meeting.
The appeal can either be by way of a complete re-hearing of the matter or simply by reviewing the original decision based on the content of the employee's appeal.
The advantage of the former is that, if there were any procedural irregularities at the first stage, they would be ironed out by a complete re-hearing at the appeal stage. The disadvantage is that this lengthens the time taken to conduct the appeal.
Many things can happen during the course of a disciplinary procedure that might throw this process off track. For example, an employee could respond by lodging a grievance or by going off sick. It is particularly important that advice be sought in these cases.
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