The Federation of Small Businesses has warned that UK productivity growth will continue to stall...
Good procedures enable you to deal with disciplinary and grievance issues consistently and fairly, with a view to sorting them out before they become serious. Fair and transparent procedures are also vital to help you avoid potential accusations of unfair dismissal.
It makes sense to have procedures that follow the Acas Code of Practice, and to make sure that procedures are properly followed when problems arise.
1. Establishing the principles
The procedural requirements set out the rules that you and your employees must follow when dealing with disciplinary issues and grievances.
Make sure employees can find out about your disciplinary rules
- Inform employees where they can see the rules. For example, in a handbook or displayed on a staff noticeboard.
- You cannot reasonably complain if someone breaks a rule they did not know existed.
Your rules must be reasonable
- The seriousness of the offence should be assessed according to the damage done.
- Ensure your rules are not discriminatory. For example, requiring more formal dress from men than women.
Your rules must be applied fairly, reasonably and consistently
- Investigate thoroughly before you lay any disciplinary charges.
- Give the employee time to consider a response and the opportunity to make representations (or to have representations made on their behalf).
- Take time to consider your findings and carry out a follow-up investigation if required.
- Any appeal should, if possible, be heard by someone senior, who was not involved in the first hearing.
- In deciding on penalties, it is important to be consistent and reasonable - you can take mitigating circumstances into account. If you treat people differently for the same offence, you must be able to explain why.
You must use 'fair and reasonable' procedures
- Your procedures should ideally comply with the Acas Code of Practice which sets out principles for handling discipline and grievance issues in the workplace.
- Failure to follow the Code of Practice could be very expensive (see Ignoring procedures).
- Put your procedures down in writing and give all employees access to a copy.
2. Setting the rules
Identify the areas in which you need disciplinary rules
Typically these will be:
- work performance;
- attitude and attendance issues such as poor timekeeping and absenteeism, negligence or reckless disregard for safety or hygiene regulations;
- theft, including pilfering and fraud;
- offensive behaviour, including abuse, harassment, discrimination and violence;
- inappropriate behaviour such as drinking, gambling, smoking in prohibited areas or, misuse of company facilities;
- breaches of your communication policy such as accessing and downloading inappropriate material.
Decide how you are going to classify different offences
In many small companies, this will involve using three categories:
- minor offences;
- more serious misconduct;
- gross misconduct.
Determine what constitutes misconduct - ie unacceptable behaviour
- You may want to spell out rules completely banning gambling, cash collections and the distribution of political literature, or enforcing a 'clear desk' policy.
- Many rules will be matters of degree.
Define what acts are so serious that they constitute gross misconduct
- Gross misconduct entitles you to proceed to the final stage of your procedure at which the employee risks dismissal without notice (after proper investigation, an opportunity to explain and the application of other fair procedures).
- Gross misconduct is not defined in law, but generally speaking must be an act that fundamentally breaches the relationship of trust between the employer and the employee.
- Typical offences are dishonesty, theft, gross insubordination, falsifying company documents, fighting, drug abuse, using someone else's password, introducing computer viruses, downloading inappropriate material, sending malicious emails, and racial or sexual harassment.
- Particular companies will have their own sacking offences. For example, breaking hygiene rules in a food factory.
- Beware of jumping to conclusions. You cannot sack an employee charged with theft or other criminal acts committed outside work without your own investigation.
- The fact that an offence is listed in your handbook as gross misconduct is not conclusive. A tribunal will decide for itself whether the offence was 'gross' and if the employer's response was reasonable.
3. Handling disciplinary issues
Do not give untrained managers the power to make major disciplinary decisions
- Many cases are lost because managers depart from accepted best practice procedures.
- Anyone dealing with disciplinary action should read the Acas guide Discipline and grievances at work.
Investigate thoroughly before deciding on disciplinary action
- Ask witnesses for their view of events and take a written statement if possible.
- In gross misconduct cases, that if substantiated are likely to result in summary dismissal, employees should be suspended on full pay for a brief period while you investigate.
- Review any suspension regularly to assess whether it is still appropriate. Make it clear that suspension does not constitute disciplinary action or indicate you think the employee is guilty.
Grade the sanctions you are considering according to the seriousness of the offence
- For example, some offences might merit a verbal warning, some a written warning and some a final written warning.
- Serious offences might merit dismissal or some other action such as a short period of unpaid suspension or demotion.
- A minor offence might become more serious if it was repeated, despite earlier warnings.
Minor issues can often be tackled informally
- For example, occasional lateness may not need to trigger the disciplinary procedure.
- Discuss the problem, giving the employee a chance to tell his or her side of the issue.
- Explain that this is not a warning, but that you will keep a record of the conversation. Such meetings could be recorded in a diary so that records of warnings are not lost.
- Appraisals offer a chance to deal with minor disciplinary problems and defuse grievances.
For serious or repeated offences, follow your formal procedures
Take further steps if an employee's behaviour or performance fails to improve
- After appropriate warnings, there may be no alternative to dismissal.
- Give appropriate notice, in line with statutory rights or the employee's contract.
- Whenever you dismiss an employee, give the reasons in writing. Explain the right of appeal and the process that should be followed. Enclose copies of any supporting evidence. This will often deter the employee from bringing a claim.
Keep a detailed log of all disciplinary action
- Include full records of steps taken to investigate and address the causes of the problem.
4. The Code of Practice
The Acas Code of Practice is your guide to disciplinary procedures. It set out principles for handling discipline and grievance issues. Tribunals will take it into account when considering relevant cases.
To comply with the Code of Practice, you should:
- Put your disciplinary procedure in writing. Ensure it is clear and transparent.
- Raise and deal with issues promptly and consistently.
- Carry out investigations to establish the facts.
- Inform employees and give them the opportunity to put their case. Employees should also have the opportunity to appeal against any decisions.
If you fail to use fair and transparent procedures, a dismissal could be judged unfair
- To claim unfair dismissal, employees must usually have at least two years' service.
- There is no minimum service requirement for people who are claiming unfair dismissal on the grounds of discrimination.
- Nor is there any minimum service requirement where people are claiming they have been unfairly dismissed for one of the 'inadmissible' reasons, such as being pregnant, belonging to a trade union, pointing out imminent risks to health and safety, or attempting to assert a statutory right.
- Employment tribunals can make compensatory awards in unfair dismissal cases of up to £80,541.
If you fail to follow the Acas Code of Practice, compensation awards can be increased
This can happen if you unreasonably fail to follow the Code:
- in relation to a grievance, and the employee claims constructive dismissal (ie that you made a fundamental breach of the employment relationship);
- in relation to a disciplinary issue, and the employee claims unfair dismissal.
In either event, tribunals will consider whether an increased award is appropriate regardless of whether the claimant has referred to it in the claim.
Awards can be reduced if the employee has unreasonably failed to follow the Code
5. Disciplinary and grievance procedures
You should always follow the Acas Code of Practice. Failure to do so can result in any tribunal award being increased by up to 25%.
Try to resolve issues informally where possible
- Mediation may help.
Where informal measures fail, you should follow your formal written procedures
- Investigate the events to establish the facts.
- Notify the employee, in writing. Include the details on which the allegations are based.
- Hold a face-to-face meeting to discuss the matter. The employee has the right to be accompanied at any disciplinary meeting.
- Decide what action, if any, will be taken.
- Inform the employee of your decision in writing and give the employee the opportunity to appeal.
There are exceptions when it may be permissible to depart from your normal procedures
- Where factors beyond the control of the parties make it impracticable to complete the procedure. For example, when one of the parties has gone to live abroad.
- Where all employees have been dismissed, and offered re-engagement on new terms.
- Where there are redundancies or you are not renewing a fixed-term contract.
- Where someone is unfairly dismissed for official (protected) industrial action.
- Where the business suddenly closes down.
- Where either party has reasonable grounds for fearing violence or harassment, or damage to property.
6. The disciplinary hearing
Employees should be given sufficient notice to prepare for a formal hearing
- Hearings should not normally be held on the same day as notification.
Respect the employee's rights
- For example, their right to give their side of the story and to be accompanied if they wish.
Make clear the consequences if there is no improvement (eg penalties or dismissal)
Compose any written warning after the hearing, not before
- Verbal warnings are usually valid for three to six months, while final warnings may remain in force for 12 months or more.
- Where an improvement is required, state what improvement is required, how it will be measured and the possible consequences of not making the improvements.
- State the duration of any written warning in the warning letter.
Dealing with grievances
You are required to have grievance as well as disciplinary procedures. Your procedures should be clear and transparent.
- Train managers to enable them to handle grievances effectively.
- Try to resolve grievances informally. Many issues can be solved by simply talking them through.
- Where informal measures do not resolve the grievance, the employee should put the grievance in writing.
- Arrange a face-to-face meeting to discuss the problem. The employee has the right to be accompanied.
- Decide on any necessary action.
- If the employee is not happy with the outcome, he or she can appeal.
- Any appeal should be heard by someone impartial not involved in the original hearing.
- Keep a written record of the case. Ensure they are kept confidentially.
7. Going for improvement
Aim to improve behaviour or performance, not to punish the employee.
Be constructive and positive
- Give a first warning. Accompany it with the offer of training.
- Consider counselling if family or social difficulties underlie the problems.
Stress that it is the behaviour you are criticising, and not the person
Devise an action plan for improvement to tackle ongoing problems
Set the timescale for improvement
- Leave a stated amount of time for improvement between warnings.
- Tribunals insist that the time allowed and improvement demanded must be reasonable. This will depend upon the circumstances.
Employment law is complex and is changing rapidly. This factsheet reflects our understanding of the basic legal position as known at the last update. Obtain legal advice on your own specific circumstances and check whether any relevant rules have changed.
"Phone calls are becoming a tricky issue. Rules regarding phone calls must be reasonable and take into account the employee's personal circumstances, such as the need to be contactable by a carer for an elderly relative or by a childminder." - Alexandra Davidson, Berwin Leighton Paisner solicitors