Disciplinary and dismissal procedure
Greater Manchester Pay and Employment Rights Advice Service Factsheet
Disciplinary and dismissal procedure
The ACAS code of practice (COP)
This was introduced on 6th April 2009. It appeals to dismissals that took place on or after 6th April 2009 and disciplinary issues that were notified to the employee in writing on or after 6th April 2009. It gives guidance about dealing with discipline (and also about grievances) at work. Employers are expected to use it to deal with disciplinary issues of conduct and performance. It can also apply to issues of capability if an employer does not have a separate policy for dealing with this. It does not apply to redundancy dismissals, or to the expiry of fixed-term contracts.
Failure to follow the COP
Employment Tribunals expect employees and employers to follow these rules, and can increase awards to employees by up to 25% if an employer has unreasonably failed to follow the COP. If an employee has unreasonably failed to follow it then the Tribunal can reduce any award made by up to 25%.
The investigation
The COP says that employers should first of all investigate the facts of any case before starting a disciplinary procedure. Employers should do this without undue delay. How the investigation should be conducted will depend on the nature of the problem. In some cases the investigation will involve collecting evidence to be put to the employee; in other cases it will be necessary for the employer to meet with the employee in question. If this is the case, then the investigatory meeting should not become a disciplinary meeting. This should happen later if the employer decides there is enough evidence to proceed. In cases of misconduct, the COP recommends that a different manager should conduct the disciplinary hearing from the one who carried out the investigation.
Suspension
Sometimes an employer may decide it is necessary to suspend an employee from work during the investigation. It should be made clear to the employee that this is not a disciplinary action. Any period of suspension should be as short as possible, and employees suspended should continue to be paid as normal.
The letter
If the employer decides that there is a disciplinary case for the employee to answer then they should notify the employee in writing. The letter should contain enough information about the alleged misconduct, poor performance or capability, and the possible consequences, to enable the employee to prepare to answer the allegation/s. If appropriate the employer should include copies of relevant documents. The letter should also include details of the place and time of the meeting, and advise the employee of their right to be accompanied (see below).
The meeting
The meeting should be arranged without undue delay, but the employee should be given a reasonable amount of time to prepare for it. Employers, employees and their companions should make every effort to attend. Where an employee is persistently unable to attend a meeting without good cause then the employer should make a decision based on the evidence available. At the meeting the employer should explain the complaint against the employee, and go through the evidence. The employee should then be given the opportunity to ask questions and present their evidence. Both employers and employees may call witnesses, but both should give advance notice to the other that they intend to do so.
The right to be accompanied
Employees have a statutory right to be accompanied to a meeting that could result in:
- A formal warning;
- Some other disciplinary action; or
- The confirmation of either of the above (at an appeal meeting).
The employee should first of all make a reasonable request to be accompanied to the employer. What is reasonable will depend on the circumstances of each case; however it would not be reasonable to insist on being accompanied by someone whose presence would prejudice the hearing, or by someone from a remote geographical location if there was someone suitable and willing available on site.
The companion should be allowed to speak on the employee`s behalf if the employee wants that. They should be allowed to explain the employee`s case, to confer with them, to respond on their behalf, and to summarise their case. The companion does not have the right to answer questions on the employee`s behalf, or to prevent the employer from explaining their case.
The decision
After the meeting the employer should consider whether disciplinary or other action is necessary, and should inform the employee in writing. If allegations of misconduct or poor performance are proved, then normally a written warning would be issued. Further misconduct or failure to improve performance within a set period would normally result in a final written warning. Sometimes a final written warning is issued without a previous warning where misconduct or performance is serious enough to warrant it, for example if it has had or may have a serious impact on the organisation.
Either type of warning should set out the nature of the problem and the improvement required with a reasonable timescale for it. The employee should be told how long the warning will remain on file, and the consequences of failure to improve. In the case of a final warning, this could be dismissal or a contractual penalty such as demotion.
Dismissal
A decision to dismiss should only be made by a manager with authority to do so. The employee should be told the reasons for dismissal, the notice period, the date of termination of the contract and the right of appeal. In cases of gross misconduct, employers may dismiss employees without notice or prior warnings, although a fair procedure should be followed. Employers should give examples of what they consider to be gross misconduct in their disciplinary rules, but normally these include theft, fraud, violence, negligence and insubordination.
The appeal
If an employee feels that the disciplinary action taken against them is wrong or unjust they should appeal, in writing, giving their reasons. Appeals should be heard without undue delay, ideally at an agreed place and time. The employee has a statutory right to be accompanied to an appeal hearing. The appeal should be dealt with impartially and ideally by a different manager. Employees should be informed in writing of the outcome of the appeal as soon as possible.
Other issues
Employees who are charged with or convicted of a criminal offence should not, automatically, be disciplined or dismissed. Employers should consider what effect the charge or conviction has on their suitability for the job and their relationships with the employer, work colleagues and customers,
Special rules should be followed by employers who are considering disciplinary action against an employee who is a union representative.
Unfair dismissal
Employees who believe they have been dismissed unfairly can make a complaint to the Employment Tribunal, although employees usually need 12 months` service before they can consider this unless they have been dismissed for one of a number of reasons which protect them against unfair dismissal from day 1 of employment. See our factsheet Unfair Dismissal for further information about these issues
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August 2010
