Does it make you want to bury your head in the sand?
If you employ staff at some point unfortunately you will have to deal with an employee’s poor performance or misconduct in some form or another. If you find yourself in this situation it can be easy to become stressed out or lose control of the situation.
The reality is that if you have good procedures in place and you follow them in a fair manner you are unlikely to run into difficulty.
1) ACAS Code of Practice on Disciplinary and Grievance Procedures (the ACAS Code)
2) The supporting guide, Discipline and grievances at work (ACAS guidance)
3) Acting reasonably in accordance with the Employment Rights Act.
ACAS Code of Practice
The ACAS Code provides practical guidance to both employers and employees on how to fairly carry out disciplinary procedures for misconduct or poor performance.
If you fail to follow any part of the ACAS Code it will not necessarily mean that your employee will have a successful claim against you, however Employment Tribunals must take the ACAS code into account when considering whether you have acted reasonably or not.
In the event that you have not followed the ACAS code and your employee is successful with a claim for unfair dismissal the tribunal can adjust the amount of compensation by up to 25%.
It is important to ensure that your internal procedures are in line with the ACAS code of practice and that it at least covers the minimum details in the ACAS code.
If you do not have a disciplinary procedure you can purchase a basic, easy to follow, document from my DIY Document Shop which covers all of the points that you will need to comply with the ACAS code.
In addition to the ACAS Code (which is mandatory) ACAS have produced some guidance which will assist you.
If you fail to follow the guidance this will not be considered by the Employment Tribunal in making their decision.
Acting reasonably in accordance with the Employment Rights Act.
Whilst the ACAS code is a good starting point you should note that just because you followed the code it will not always be sufficient to persuade an employment tribunal that you have behaved fairly in dismissing an employee.
The law regarding unfair dismissal is contained in the Employment Rights Act and the test the Employment Tribunal will look at is whether you have acted reasonably in all the circumstances. This means that each case is viewed differently and there is no hard and fast rule for a dismissal to be fair.
Ultimately for the decision to dismiss an employee to be fair it must be within the “band of reasonable responses”.
Procedure to follow
1. Allegation of poor performance or misconduct – consider if formal action necessary?
At the outset it is recommended that you consider if the matter requires formal investigation or not. Is it something that can be resolved by having an informal chat with the employee? Do you want to try to resolve the matter quickly with no further action? Formal procedures are not always the most appropriate way of dealing with a problem and you should keep this in mind.
If it is a serious matter, or something which you have already discussed informally, you may have no choice but to move forward with the disciplinary procedure.
If you decide to start with an informal chat about the issue it is not necessary to confirm the details to the employee in writing, and the discussion should not be used against the employee in any future formal procedures.
Essentially the informal chat is basic good management of staff and therefore in order to be effective the manager should keep a note of the discussion but not place on the employee’s disciplinary record.
2. Start the disciplinary procedure
Once you have found out about the alleged misconduct and you have made the decision to proceed on a formal basis it is important that you do not delay in taking action and communicating this to the employee.
An unnecessary delay without taking action could prejudice your ability to rely on the gross misconduct to dismiss the employee without notice.
When you notify the employee of the allegation and start of the disciplinary procedure you may want to consider suspending the employee whilst the investigation takes place. If you do suspend the employee, proceed with caution. Further information about suspension is detailed below.
Carrying out a thorough and fair investigation into allegations is crucial to ensure fairness of the decision at the end of the disciplinary procedure.
Fair investigations are needed to ensure that full explanations can be obtained and often a plausible explanation will be revealed resulting in the end of the procedure and no further need for investigation.
A question that employers often ask is ‘how much investigation do we need to carry out?’ Unfortunately there is no simple answer to this question as each case will differ depending upon the circumstances and the allegations.
The key is to ensure that the relevant facts have been established and you are certain that you are behaving reasonably in moving matters forward.
The investigation that you undertake for misconduct will be longer and require more than when you are dealing with a capability issue.
It is important to note the distinction between an investigation meeting and a disciplinary meeting. They should not be blurred into one and if circumstances or information comes to light in the investigation meeting which means that you could move straight to the disciplinary stage it is important not to do so.
For example the employee admits the allegation that has been made during the investigation meeting. It is not serious enough to warrant dismissal so you decide to give a warning there and then. This is not advisable, you should conclude the investigation meeting and then convene a disciplinary meeting.
This is important to ensure a fair procedure is followed, but also because an employee does not have a legal right to be accompanied to the investigation meeting, but they do for a disciplinary meeting.
You may decide, or have a policy, that allows employees to be accompanied at the investigation meeting in any event.
If the employee requires reasonable adjustments, because of a disability, then it is advisable to think carefully before refusing the employee to be accompanied by someone at the investigation stage.
Who should conduct the investigation?
You should first check your procedure (if you have one) to see if it stipulates who should be responsible for the investigation.
In the absence of any guidance in your procedures the obvious choice is the employee’s line manager. But consideration should be given to whether this is in fact the most appropriate person.
If the employee’s line manager is not an appropriate person then someone from HR would be a good alternative.
Also consider if any specialist knowledge is required for the investigation and appoint someone with the relevant skills.
In a small organisation you may want to get some external assistance for the investigation, and this is something that I can help with if required.
Obtaining the evidence
The investigation should be completed as quickly as is possible and unnecessary delay avoided. If the person who has been designated to conduct the investigation has a heavy work load or holiday booked you should rethink whether they are the most appropriate person to conduct the investigation.
The type of evidence that you will gather in the investigation is the physical evidence, such as CCTV, evidence from their computer, letters, emails, etc. The second is witness evidence, and therefore any witnesses should be spoken to at the earliest opportunity and a note made of their recollection.
It is not necessary to obtain full formal witness statements, it need only be legible and the witness should sign the notes to confirm that it is a true recollection.
If the witness is concerned about reprisals and wants to remain anonymous you may give them an assurance that as far as possible their evidence will remain anonymous.
It is not necessary for an employee who is the subject of the allegations to know the identity of the witnesses, it is merely appropriate for them to know the case against them and the information that they must respond to. If you would like further information about how to protect witness anonymity then please email me firstname.lastname@example.org and I will send you the details.
Care should be taken to ensure that the investigator remains focused on the allegations that they are investigating and a ‘fishing’ exercise should be avoided. It should not be taken as an opportunity to look into everything the employee has done during their employment, unless appropriate to the allegation.
4. Disciplinary Hearing
Once the investigation is completed consideration should be given to whether there is a case to answer to move the issue forward to a disciplinary hearing, and who should conduct the disciplinary hearing.
The ACAS Code recommends that the person dealing with the disciplinary hearing should be someone different to the investigator. However if it is not practicable to do so, perhaps because you do not have someone different, care should be taken to follow a fair and reasonable procedure in the separate decision making process required for the disciplinary hearing.
- Write to the employee to confirm the outcome of the investigation.
- Invite the employee to a disciplinary hearing.
- Inform the employee of the right to be accompanied at the hearing.
- Ensure that the employee is informed of the allegations in full.
- Notify them of the possible outcome of the disciplinary hearing, i.e. warning, dismissal etc.
- If witnesses will be attending the names should be given to the employee.
- If there is additional evidence from the investigation or evidence which the employee has not seen this should be given to the employee.
- The employee should be given sufficient notice of the hearing to allow them the time to consider the allegations and prepare their response.
- Consider also sending the employee a copy of the disciplinary procedure.
What happens if the employee fails to attend the hearing or asks to postpone?
If the employee requests that the meeting is re-arranged becasue they would like more time or their chosen companion is not available it is advisable to agree to this request and re-arrange.
If the employee does not turn up to the meeting at all and no explanation is provided it would be easy to go ahead in their absence, but it is recommended that you do not do so this first time, but that you re-arrange and invite the employee to attend another meeting.
Often employees who are subject to disciplinary procedures will subsequently become unwell often through stress related illness, and this can cause difficulty in moving the disciplinary issue forward.
Depending upon the circumstances of the disciplinary allegations and the nature of the employees illness you may consider obtaining a medical report, or information from the employee’s GP about their condition and effect.
If the employee is insistent that they cannot attend any disciplinary meetings because of their illness a specific question about the ability to attend such meetings can be asked of the employee’s GP and/or an occupational health report may be obtained. Just because they are unfit for work, does not necessarily mean that they will be unfit for a meeting.
In the event that the employee states they cannot attend a meeting due to ill health you could give consideration to making adjustments to the procedure by perhaps;
- dealing with the hearing by telephone;
- arranging for the hearing to take place in a neutral location;
- allowing the employee to be accompanied by someone other than a work colleague or trade union representative;
- conducting the hearing by email, thus allowing the employee to make written representations.
Can you proceed in the employee’s absence?
If there is no reasonable explanation for the employee’s non-attendance at the hearing and the employee has been given a reasonable opportunity to attend it is possible to proceed with the hearing in their absence.
Further investigation after the hearing
During the hearing the employee may raise issues that need to be investigated further. You may also need to speak to witnesses who were not present at the meeting, about issues the employee raised. In this case the hearing should be adjourned to allow you to investigate.
Following further investigation any additional information obtained should be provided to the employee and they should be notified of the reconvened hearing.
Making a decision and giving the employee the outcome of the hearing
It is advisable to avoid telling the employee the outcome immediately after the evidence has completed, as this suggests that you have not given a fair and reasonable consideration to the evidence.
An adjournment in the hearing should be made to consider the evidence and information provided. This adjournment could be while the employee waits or if necessary could be concluded at another time.
Full consideration should be given to all of the evidence received and presented in deciding what sanction to impose, whether it be a warning, dismissal or some other sanction.
If you are considering dismissal then in order to be a fair reason for dismissal the person conducting the disciplinary must ensure that they have a genuine belief, based on reasonable grounds, that the employee is guilty of misconduct, and that any decision to dismiss is fair and reasonable in all the circumstances.
The decision should, where possible, be communicated to the employee in person, giving reasons for the decision. It should then be followed up with confirmation in writing and informing the employee of their right to appeal.
If you are considering giving a warning you should think about whether it is appropriate to move straight to a final written warning. The ACAS code provides that employees should be given an opportunity to improve before a final warning is give.
The warning should be tailored to the circumstances and should have a time limit when it expires.
If you give a warning then the details should be provided in writing, along with notification of their right to appeal. Disciplining twice for the same conduct
The right to appeal should be notified to the employee along with your time-scale for receipt of the appeal.
In the absence of any specific time-scale in your procedures it is advisable to give a reasonable period of time for the appeal which I advise should be no less than 5 working days.
If the employee does appeal, as far as is possible, the appeal should be dealt with by someone impartial who has not been involved in the investigation and disciplinary hearing. Ideally they should be a more senior person than the disciplinary decision maker.
It is accepted that this is not always possible, particularly in smaller organisations, and therefore it is recommended that you consider the opitions carefully, and record this decision making process, in case it is needed in evidence later.
An alternative would be to instruct someone from outside of the organisation to deal with the appeal, and I can assist you with this if required. Please email me on email@example.com or telephone 01983 629099 to discuss your options.
The person dealing with the appeal should invite the employee to a meeting, and inform them of their right to be accompanied at the meeting.
The grounds of appeal provided by the employee should be reviewed along with the evidence from the disciplinary hearing.
Potential problem areas
It can often be the case that once disciplinary allegations are raised that and employee will become absent from work, usually through work related stress.
You should note that you have a duty of care to an employee who is off sick and it is important not to exacerbate the situation. However, it should not be a blanket reason to stop any disciplinary investigation or procedure.
It is advisable to obtain specific medical evidence/opinion on the employee’s ability to attend meetings and participate in the disciplinary procedure.
If you decide that you will wait for the employee to recover before taking further action you should ensure that you preserve your position in relation to the disciplinary issues by notifying the employee that they have been placed on hold only.
Where possible it is crucial that confidentiality is maintained throughout the investigation and disciplinary hearing.
If you are interviewing witnesses careful consideration should be given to the type and amount of information that is given to the witness about the allegations.
In any event, witnesses should be informed of their own obligations in respect of confidentiality.
Right to be accompanied
As set out above, employees have the legal right to be accompanied at the disciplinary and appeal meetings. This is in addition to any obligation contained within your own internal procedures.
The right to be accompanied, by law, is limited to:
- Someone who is employed by the trade union;
- Any other official of a trade union whom the union has reasonably certified in writing as having appropriate experience of, or as having received training in, acting as a worker’s companion; or
- Another of your employees.
The employee does not have to necessarily be a member of the trade union nor does the particular union have to be recognised by your organisation for the employee to be accompanied by a trade union representative.
If an employee requests to be accompanied by someone other than the three types of person listed you should give careful consideration to allowing them to be accompanied by the person requested. You have the authority to agree an alternative, and depending upon the nature of the allegations and the employee’s particular characteristics, it may be advisable to agree.
If the allegations against the employee are particularly serious you may wish to suspend the employee during the investigation and/or disciplinary hearing.
Suspension should not just be used as a matter of course, and real consideration should be given as to whether it is appropriate and justified to remove the employee from the business. If you suspend an employee without justification and in circumstances which are unnecessary it may be a breach of your duty to the employee.
If the decision is made to suspend the employee this should be communicated verbally and then followed up in writing with full details of the employees obligations during suspension, as well as details of when the suspension will be reviewed.
A review date should be set, and the appropriateness of suspension reviewed regularly.
Cross examination of witnesses
It is important to remember that disciplinary proceedings do not require the same level of proof as you would need if investigating and prosecuting a crime.
When it comes to evidence from witnesses there have been a few cases decided on the fairness of a decision where the employee was not given the opportunity to questions witnesses.
If you have a situation where the allegations are supported primarily with witness evidence you should consider carefully the question of whether witnesses should attend the disciplinary hearing, and whether, if requested, the employee is allowed to question the witnesses.
Ultimately it comes to the general questions of fairness and reasonableness of the procedure and decision making. I recommend getting advice on this point which is specific you your situation.
When issues arise with employees it can be time consuming, stressful and ultimately takes you away from working on your business.
With the help of Real Employment Law Advice you will have more time, less stress and I guarantee that I will help you improve your business performance.
I offer ongoing support for you as your ‘virtual HR department’, taking care of the personnel issues as well as legal compliance.