The Disciplinary Process, 10 mistakes to avoid

Wherever and whenever th

ere are a group of people working together, there are bound to be differences in personalities, opinions and behaviours, which sometimes becomes disruptive. Occasionally, performance standards may need to be addressed to maintain or increase productivity.

The Disciplinary process is required at the workplace to restore acceptable standards of behaviour or performance where the employer reinforces boundaries and expectations.

The process has to be followed carefully and inexperienced managers can find it daunting. Below is a brief  guide outlining 10 mistakes to avoid.

1. The policy and procedure: Not having an existing policy and procedure. It may be stating the obvious but having a structured framework on how, and when it is applied, keeps it fair and consistent. Employers should regularly review the policy, updating it to comply with statutory requirements, and have a policy that matches their business needs. For example, swearing in anger during an argument may be considered a general misconduct in a construction company but the same may be considered a gross misconduct in a children’s charity.

2. ACAS code of practice: Not adhering to the Acas guide to the disciplinary process. Although not compulsory, it can increase or decrease awards by the Employment Tribunal by 25% depending on whether it was followed or not. Details are on the Acas website.

3. Training : Not training managers on the process and importance. All managers, especially line managers, need to be trained on the rules, statutory requirements, responsibilities and rights of employers and employees. Vicarious liability means that the employer is ultimately responsible for decisions and actions of managers during the investigation, disciplinary and appeal process. There was a case a while back Mohamud vs WM Morrsion where an altercation at the car park with an employee and a member of the general public resulted in the Supreme Court concluding that there was a close connection to the employer, Morrisons, who had to compensate the customer. This case shows how broad the net of liability for the employer can be and the importance of putting preventative measures such as training  (eg.customers services, equality & diversity) in place. It also highlights the need for managers to understand the different roles in the process and to act fairly, reasonably and objectively.

4. Confidentiality and Privacy: Not practising data protection and no respect for privacy. The employee and details of the case being investigated should only be shared with relevant parties or managers, applying the ‘need to know’ criteria. Even during the investigation process it is necessary to highlight why and what is being recorded, explaining the need for confidentiality and gaining consent underlined by the rules of data protection. Witness statements for example can be edited to block out names to maintain anonymity. The employer can go further by choosing a comfortable venue outside the workplace away from prying eyes of colleagues. It is not always possible to keep  tight lid on an issue, especially if an incident was witnessed by the majority of staff; However, it is important that the process maintains a positive element with the employee trusting the employer is doing the right thing for the business but still considering the sensitivity of the process and employee.

5. Unfair dismissal: Dismissing without thoroughly considering the circumstances of the problem , employee or correctly following the disciplinary process. There are over 20 possibles cases of unfair dismissal and besides the general discrimination or whistle blowing grounds for unfair dismissal, if the employee has over  two years service they also have further rights. It is important to note that unfair dismissal could be claimed through constructive dismissal. To be fair and consistent, the whole process must be professionally carried out and be objective. The legalities of protected characteristics must be carefully considered. A recent example was the Starbucks employee who won her case at the Employment Tribunal because Starbucks had not completely understood how her dyslexia affected her performance.  If, for example, an employee states he has some kind of sickness or disability, have the doctor or occupational health confirm it and consider reasonable adjustments before making any final decisions. Mitigating circumstances also need to be considered, nevertheless the employee needs to communicate these issues to the employer and the point on documentation supports this issue.

6. Documentation: No paper trail. It is imperative to have written evidence of the disciplinary process from day 1, and with evidence of the policy, procedure, evidence, reasons and outcomes. Besides the disciplinary itself, every stage of the employee life cycle should be documented. It starts from the recruitment, induction and on boarding process with signed records that they have read, know where the policy is and understand it. Supervisions and one to one meetings as part of support and performance management, should be recorded and filed. Employers should let employees know the reporting lines of communication and inform the employer on developments that could affect how they work such as pregnancy, an illness, or some kind of medication with side effects. The Job descriptions, person specification and policies are necessary foundations in employment issues. Documentation serves as reference point for both the employer and employee and most importantly provide the legal floor in case of litigation. On the other hand, emails, and other written or recorded forms of communication, between managers when addressing employment issues need to be remain professional, objective and refraining from idle gossip, as it could be requested as further evidence by the Tribunal as in the case of WPA vs Norwich Union in 1997.

7. Investigation: Skipping the investigation process. Employers can not go straight to the disciplinary process without investigating the problem first. Investigations are not always the lengthy detective work that some may imagine. If there has been a fight between employees at a party for example; employers need to focus on the problem and not get side tracked because one employee has a poor attendance record for instance; that issue should be investigated separately. Be clear on what is being investigated, and outline what needs to be confirmed. After deciding on the investigator, it is helpful to have an investigation plan with a structure of who to question, witness statements and accurate recording (if words used were “I am scared” do not replace with I am frightened), records to check, facts and figures to clarify and an idea of time-frames to meet. Investigate all new allegations even if it means adjourning the hearing to gather evidence and confirm facts. All gathered evidence should be disclosed to the employee so they have copies to refer to before the hearing. Following the investigation, the disciplinary meeting should be held without unreasonable delay whilst allowing the employee reasonable time to prepare for the meeting.

8. Suspension: Lengthy suspensions and employee believing it to be part of the disciplinary process. Suspension is necessary if the presence of an employee can influence the fairness of the investigation or puts themselves or others at risk. The suspension of an employee during the investigation process should be on full pay and benefits.It is costly to the business and can have impact on the team if the employee’s absence from work is unnecessary prolonged. It has to be clear that it is not a disciplinary action in itself.

9. Right to appeal and right to be accompanied: Not providing the employee the opportunity to have a companion or appeal a disciplinary outcome. It is their statutory right and employers should make provisions for them to exercise it. The companion can be a colleague, a trade union representative or an official employed by the trade union. Employment Appeal Tribunal’s ruling in the case of Toal and Anor vs GB Oils Ltd (http://www.bailii.org/uk/cases/UKEAT/2013/0569_12_2205.html) supports the right to be accompanied.

10. Surprise! A surprised employee: At every stage the employee needs to know what is happening and what the possible outcomes might be; with employer explaining the disciplinary process whether at an informal stage or formal stage. The surprise element should also be removed from the employer’s perspective by consulting with Acas, their legal team or an employment law consultant especially in a complicated case.

Have you experienced or managed the disciplinary process, what did you find most challenging?