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Patch Law

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Disciplinaries
and Dismissals

- advice for employers

How to deal with misconduct and poor performance

Disciplinaries can arise from an employee’s unacceptable behaviour (‘misconduct’) and/or poor performance (‘capability’). 

Capability – Capability or performance relates to an employee’s ability to do their job. 

Misconduct – Misconduct is when an employee commits an act of improper, wrongful or unlawful behaviour that ultimately breaks workplace rules. 

Communicate expected standards of behaviour and performance clearly from the outset, and employees are more likely to meet those standards and accept the consequences if they don’t live up to them. 

For those times when work or behaviour standards slip, as an employer, having a clear process in place will enable you to address such issues with confidence. Whilst it is not uncommon to have the same procedure for both, it is preferable to have separate policies. Misconduct and capability are different, in terms of intention and blame, and it may be counter-productive to stigmatise performance issues as being in the same category as misconduct.

Dealing with bad behaviour or poor performance is not something to shy away from.  In our experience problems don’t ‘sort themselves out’ as much as employers would wish.  Usually, taking prompt action to deal with a problem is a better strategy than putting it on the back burner.


I hope I don't find myself in this situation again, but if I was I would use you again. Thanks for helping me navigate this situation.
Display Director
London

Informal or formal?

  • Informal disciplinaries 

Before starting a disciplinary procedure, you should first see what informal options may be open to you. Whilst it will depend on the issue (some issues are just too serious to be dealt with this way), having a private discussion with the employee and any other relevant people can often be the quickest and easiest solution. If a warning – even a ‘verbal’ one – is considered likely, then a ‘formal’ process should be followed.

  • Formal disciplinaries 

If you have attempted to resolve the issue with the employee informally, but matters remain unresolved then you may decide to deal with matters formally, following a fair procedure.

What process to follow?

  • Contractual procedure / ACAS Code of Practice

Employers should have a written disciplinary procedure in place that is accessible to and known about by all employees. The procedure should be referred to in an employee’s particulars or contract of employment, but the full procedure is better to be non-contractual and contained in a policy portal or staff handbook. You will be expected to follow your procedure, however the ACAS Code of Practice is the minimum standard a workplace must follow. 

Failure to follow the Code will not, in itself, make a dismissal unfair.  However, an employment tribunal will take the Code into account when assessing whether the employer has followed a fair procedure. 

Always investigate first


The investigation stage of any disciplinary is about fact finding and evidence gathering.  This will include compiling relevant documentation and may include interviewing witnesses.

Do you need to hold an investigation meeting with the employee?


Sometimes an employee’s initial response to the allegations is useful. However, an investigation meeting with the employee is not always necessary (unless your disciplinary policy requires it). Bear in mind the employee will have their say at the Disciplinary Hearing in due course. If you are unsure whether an investigation meeting is appropriate for the issue you have been presented with, we suggest contacting us for advice and guidance. There is no statutory right to be accompanied at an investigatory meeting, although it may sometimes be appropriate, particularly if the employee has a disability, is unwell or there is a language barrier.

Who should conduct the investigation?


As a first step, an investigator will need to be appointed. This may be an internal individual e.g., a manager, or an external party e.g., HR consultant. It will then be for the investigator appointed to look for evidence that supports the allegation(s) and evidence that undermines it. Although they may make a recommendation that the matter should proceed to a disciplinary hearing or, alternatively, that there is no case to answer, it will not be for the investigator to decide on any sanction against the employee.

Whilst it is difficult to give firm guidelines on what a ‘reasonable investigation’ should entail, the end goal must be to ensure that the substance of the allegation(s) is clear so that they can be put to the employee in sufficient detail to enable them to respond to the case fully.

Do you have to suspend the employee?


Once an investigator has been appointed, it will now be to decide what happens to the employee in the meantime. Generally, you can suspend an employee provided you have good reason to do so. A ‘good reason’ will normally be one of the following:

➣ There are health and safety concerns;

➣ There is a real risk of the employee interfering with the investigation in some way, e.g. destroying evidence or attempting to influence witnesses;

➣ Working relationships have broken down.

It is important not to assume suspension is always necessary, as it may give the impression that a pre-judged decision has been made. Suspension should be on full pay, should not be viewed as a sanction, and should be kept under review, lasting no longer than is necessary. It is worth seeking our advice if you are unsure whether suspension is appropriate.

What happens after the investigation?


Once the investigation is complete, the employee should be contacted and advised whether the matter is being taken to a disciplinary hearing.

So that the employee can effectively prepare their case, the letter should include:

  • Sufficient information about the allegation(s);
  • The arrangements for the hearing e.g., who will conduct the hearing, time and place;
  • The likely range of consequences, for example if the employee is at risk of dismissal;
  • Copies of any documents or evidence on which you intend to rely on at the hearing;
  • Copies of any witness statements;
  • Any witnesses that will attend the hearing; and
  • A copy of your disciplinary policy.

A hearing should be held without unreasonable delay while allowing the employee reasonable time to prepare their case.  As a rule of thumb, 3 working days after receiving the letter is usually about the right gap.


Thank you so much for your help and, in particular, the speed at which you dealt with this matter.
Care Home Manager
Bristol

Making arrangements for the Disciplinary Hearing

The employee also needs to be made aware of their statutory right to be accompanied by a work colleague or a trade union representative (even if the employer does not recognise a trade union) at the disciplinary hearing, and any subsequent appeal hearing. 

It is also good practice to check whether the employee needs any special arrangements to be made so that they can attend and participate fully in the hearing, and an employer should always keep in mind their duty to make reasonable adjustments for disabled employees.

What can we do when an employee goes off sick?


While all parties should make every effort to attend a disciplinary hearing, employees will sometimes seek to have the hearing postponed. This may be for several reasons, but a common one is stating that the process has made them ill with stress. Or it may be the case that the employee is absent with an unrelated illness or injury when the disciplinary case is at the stage of needing to proceed.

This can create a conflict of priorities for you as an employer: concluding the disciplinary proceedings without unreasonable delay, and your duty of care to the employee. Therefore, it’s important to firstly consider a way to balance both. 

Just because an employee is certified by their GP as unfit for work, does not mean they are unfit to participate in a meeting, particularly if arrangements are made for this to take place remotely or at a neutral venue.  It may be appropriate to take Occupational Health or other medical advice as to whether the employee is fit to participate in this way.

It will usually be expected to offer one postponement, although it may sometimes be sensible and appropriate to wait for while, particularly in cases of genuine serious illness or injury, or other circumstances, particularly when they are disability or pregnancy related.  However, an employer is ultimately entitled to make decisions based on the information available to it, and if it has made every effort to enable the employee to participate (including offering to accept written submissions from the employee) it still may be regarded (by an Employment Tribunal) as reasonable and fair to proceed with a disciplinary hearing, and potentially a dismissal, in the employee’s absence.

It is important to remember that every case is fact specific and the above should be regarded as general guidance only.  We would strongly recommend you get in touch with us for specific advice if you are faced with sickness absence potentially derailing a disciplinary process.

How to run the Disciplinary Hearing


If you have followed a compliant and fair procedure so far, the employee should already know the allegation(s) against them.  However, the manager hearing the disciplinary should still take the time to explain the complaint(s) you have about the employee's behaviour.  Then go through the evidence you have collected about that behaviour (which they have been sent in advance).  Then, most importantly, give the employee an opportunity to fully respond to the allegations, and tell their side of the story.

It is best not to make a decision at the hearing itself, but explain that you will take time to consider everything you have read and heard and then make a considered decision.

Outcome of the Disciplinary Hearing


Once the hearing has taken place, the employer will have two questions to consider:

➣ Do you uphold the allegation(s) against the employee?

➣ If you do, what sanction will you impose as a result?

Examples of sanctions may include a first written warning, a final written warning, demotion, dismissal with notice or summary dismissal (without notice). 

If you are considering dismissal as the penalty, careful consideration must firstly be given to whether any alternatives (such as a final written warning) would be appropriate.  

It may be useful to consider what sanctions have been imposed on other employees for similar conduct and to take account of any ‘live’ warnings on the employee’s file.

It is usually considered fair to give two written warnings before deciding to dismiss an employee, except in cases of gross misconduct where immediate termination may be appropriate.

However, this is general guidance only, and if you are considering dismissing an employee, seeking advice from us before doing so may save you a lot of time and money in the long run.  We always give clear and commercial advice, and dismissal may well be appropriate.  But it is always best to do so following a process which is going to best protect the business against potential claims. 

Whether or not the decision is communicated to the employee in person, it should also be confirmed and explained in writing.

Giving the right of appeal

If an employee feels that the sanction is too severe or the process was wrong or unfair, then they should be allowed to appeal against the decision. As the ACAS Code states, the employee should inform you of the grounds of their appeal in writing, and ‘without unreasonable delay.’ Many disciplinary policies stipulate that appeals should be submitted within a set timeframe, often 5 working days.  However, if there are extenuating circumstances it would be appropriate to extend that time, or it may be a ‘reasonable adjustment’ for an employee who would be regarded as disabled, for the purposes of the Equality Act 2010.  It is therefore recommended that you seek legal advice before rejecting an appeal as being out of time, as it could significantly impact on an Employment Tribunal’s view as to whether any dismissal is unfair.

So far as possible any appeal should be dealt with impartially and heard by someone who has not been previously involved in the process.  Most appeals are a review of the disciplinary decision, rather than a complete re-hearing of the case.  There may be some cases where a re-hearing is appropriate, for example if the employee was absent for the disciplinary hearing and has not previously responded fully to the allegations. 

As with the initial disciplinary decision, the outcome of the appeal will need to be communicated to the employee in writing.


Thanks Gillian for a great service and sticking to a fixed price agreement.

Deputy Director
Bristol

How can we help?

As an employer, one of your main goals will be to protect your business from any potential claims. This can often largely be avoided by seeking specialist advice from us at an early stage to ensure a fair, transparent and timely process is being carried out. 

We can advise you throughout the process if required, from the point the misconduct allegations arise through to any appeal, as well as advising on ad hoc difficulties that may arise throughout the process. You can be assured that at all times we will take a practical and pragmatic approach to support the commercial needs of your business whilst aiming to minimise the risk of litigation.

For expert advice on all aspects of disciplinaries and dismissals from our specialist employment law solicitors, please either call us on 0117 290 0905 or complete a Free Online Enquiry and we will soon be in touch with you.

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Disciplinaries
and Dismissals
- advice for
employers

How to deal with misconduct and poor performance

Disciplinaries can arise from an employee’s unacceptable behaviour (‘misconduct’) and/or poor performance (‘capability’).

Capability – Capability or performance relates to an employee’s ability to do their job.

Misconduct – Misconduct is when an employee commits an act of improper, wrongful or unlawful behaviour that ultimately breaks workplace rules.

Communicate expected standards of behaviour and performance clearly from the outset, and employees are more likely to meet those standards and accept the consequences if they don’t live up to them.

For those times when work or behaviour standards slip, as an employer, having a clear process in place will enable you to address such issues with confidence. Whilst it is not uncommon to have the same procedure for both, it is preferable to have separate policies. Misconduct and capability are different, in terms of intention and blame, and it may be counter-productive to stigmatise performance issues as being in the same category as misconduct.

Dealing with bad behaviour or poor performance is not something to shy away from.  In our experience problems don’t ‘sort themselves out’ as much as employers would wish.  Usually, taking prompt action to deal with a problem is a better strategy than putting it on the back burner.


I hope I don't find myself in this situation again, but if I was I would use you again. Thanks for helping me navigate this situation.
Display Director
London

Informal or formal?

  • Informal disciplinaries

Before starting a disciplinary procedure, you should first see what informal options may be open to you. Whilst it will depend on the issue (some issues are just too serious to be dealt with this way), having a private discussion with the employee and any other relevant people can often be the quickest and easiest solution. If a warning – even a ‘verbal’ one – is considered likely, then a ‘formal’ process should be followed.

  • Formal disciplinaries

If you have attempted to resolve the issue with the employee informally, but matters remain unresolved then you may decide to deal with matters formally, following a fair procedure.

What process to follow?

  • Contractual procedure / ACAS Code of Practice

Employers should have a written disciplinary procedure in place that is accessible to and known about by all employees. The procedure should be referred to in an employee’s particulars or contract of employment, but the full procedure is better to be non-contractual and contained in a policy portal or staff handbook. You will be expected to follow your procedure, however the ACAS Code of Practice is the minimum standard a workplace must follow.

Failure to follow the Code will not, in itself, make a dismissal unfair.  However, an employment tribunal will take the Code into account when assessing whether the employer has followed a fair procedure.

Always investigate first


The investigation stage of any disciplinary is about fact finding and evidence gathering.  This will include compiling relevant documentation and may include interviewing witnesses.

Do you need to hold an investigation meeting with the employee?


Sometimes an employee’s initial response to the allegations is useful. However, an investigation meeting with the employee is not always necessary (unless your disciplinary policy requires it). Bear in mind the employee will have their say at the Disciplinary Hearing in due course. If you are unsure whether an investigation meeting is appropriate for the issue you have been presented with, we suggest contacting us for advice and guidance. There is no statutory right to be accompanied at an investigatory meeting, although it may sometimes be appropriate, particularly if the employee has a disability, is unwell or there is a language barrier.

Who should conduct the investigation?


As a first step, an investigator will need to be appointed. This may be an internal individual e.g., a manager, or an external party e.g., HR consultant. It will then be for the investigator appointed to look for evidence that supports the allegation(s) and evidence that undermines it. Although they may make a recommendation that the matter should proceed to a disciplinary hearing or, alternatively, that there is no case to answer, it will not be for the investigator to decide on any sanction against the employee.

Whilst it is difficult to give firm guidelines on what a ‘reasonable investigation’ should entail, the end goal must be to ensure that the substance of the allegation(s) is clear so that they can be put to the employee in sufficient detail to enable them to respond to the case fully.

Do you have to suspend the employee?


Once an investigator has been appointed, it will now be to decide what happens to the employee in the meantime. Generally, you can suspend an employee provided you have good reason to do so. A ‘good reason’ will normally be one of the following:

➣ There are health and safety concerns;

➣ There is a real risk of the employee interfering with the investigation in some way, e.g. destroying evidence or attempting to influence witnesses;

➣ Working relationships have broken down.

It is important not to assume suspension is always necessary, as it may give the impression that a pre-judged decision has been made. Suspension should be on full pay, should not be viewed as a sanction, and should be kept under review, lasting no longer than is necessary. It is worth seeking our advice if you are unsure whether suspension is appropriate.

What happens after the investigation?

Once the investigation is complete, the employee should be contacted and advised whether the matter is being taken to a disciplinary hearing.

So that the employee can effectively prepare their case, the letter should include:

  • Sufficient information about the allegation(s);
  • The arrangements for the hearing e.g., who will conduct the hearing, time and place;
  • The likely range of consequences, for example if the employee is at risk of dismissal;
  • Copies of any documents or evidence on which you intend to rely on at the hearing;
  • Copies of any witness statements;
  • Any witnesses that will attend the hearing; and
  • A copy of your disciplinary policy.

A hearing should be held without unreasonable delay while allowing the employee reasonable time to prepare their case.  As a rule of thumb, 3 working days after receiving the letter is usually about the right gap.


Thank you so much for your help and, in particular, the speed at which you dealt with this matter.
Care Home Manager
Bristol

Making arrangements for the Disciplinary Hearing

The employee also needs to be made aware of their statutory right to be accompanied by a work colleague or a trade union representative (even if the employer does not recognise a trade union) at the disciplinary hearing, and any subsequent appeal hearing.

It is also good practice to check whether the employee needs any special arrangements to be made so that they can attend and participate fully in the hearing, and an employer should always keep in mind their duty to make reasonable adjustments for disabled employees.

What can we do when an employee goes off sick?

While all parties should make every effort to attend a disciplinary hearing, employees will sometimes seek to have the hearing postponed. This may be for several reasons, but a common one is stating that the process has made them ill with stress. Or it may be the case that the employee is absent with an unrelated illness or injury when the disciplinary case is at the stage of needing to proceed.

This can create a conflict of priorities for you as an employer: concluding the disciplinary proceedings without unreasonable delay, and your duty of care to the employee. Therefore, it’s important to firstly consider a way to balance both.

Just because an employee is certified by their GP as unfit for work, does not mean they are unfit to participate in a meeting, particularly if arrangements are made for this to take place remotely or at a neutral venue.  It may be appropriate to take Occupational Health or other medical advice as to whether the employee is fit to participate in this way.

It will usually be expected to offer one postponement, although it may sometimes be sensible and appropriate to wait for while, particularly in cases of genuine serious illness or injury, or other circumstances, particularly when they are disability or pregnancy related.  However, an employer is ultimately entitled to make decisions based on the information available to it, and if it has made every effort to enable the employee to participate (including offering to accept written submissions from the employee) it still may be regarded (by an Employment Tribunal) as reasonable and fair to proceed with a disciplinary hearing, and potentially a dismissal, in the employee’s absence.

It is important to remember that every case is fact specific and the above should be regarded as general guidance only.  We would strongly recommend you get in touch with us for specific advice if you are faced with sickness absence potentially derailing a disciplinary process.

How to run the Disciplinary Hearing

If you have followed a compliant and fair procedure so far, the employee should already know the allegation(s) against them.  However, the manager hearing the disciplinary should still take the time to explain the complaint(s) you have about the employee's behaviour.  Then go through the evidence you have collected about that behaviour (which they have been sent in advance).  Then, most importantly, give the employee an opportunity to fully respond to the allegations, and tell their side of the story.

It is best not to make a decision at the hearing itself, but explain that you will take time to consider everything you have read and heard and then make a considered decision.

Outcome of the Disciplinary Hearing

Once the hearing has taken place, the employer will have two questions to consider:

➣ Do you uphold the allegation(s) against the employee?

➣ If you do, what sanction will you impose as a result?

Examples of sanctions may include a first written warning, a final written warning, demotion, dismissal with notice or summary dismissal (without notice).

If you are considering dismissal as the penalty, careful consideration must firstly be given to whether any alternatives (such as a final written warning) would be appropriate.

It may be useful to consider what sanctions have been imposed on other employees for similar conduct and to take account of any ‘live’ warnings on the employee’s file.

It is usually considered fair to give two written warnings before deciding to dismiss an employee, except in cases of gross misconduct where immediate termination may be appropriate.

However, this is general guidance only, and if you are considering dismissing an employee, seeking advice from us before doing so may save you a lot of time and money in the long run.  We always give clear and commercial advice, and dismissal may well be appropriate.  But it is always best to do so following a process which is going to best protect the business against potential claims.

Whether or not the decision is communicated to the employee in person, it should also be confirmed and explained in writing.

Giving the right of appeal

If an employee feels that the sanction is too severe or the process was wrong or unfair, then they should be allowed to appeal against the decision. As the ACAS Code states, the employee should inform you of the grounds of their appeal in writing, and ‘without unreasonable delay.’ Many disciplinary policies stipulate that appeals should be submitted within a set timeframe, often 5 working days.  However, if there are extenuating circumstances it would be appropriate to extend that time, or it may be a ‘reasonable adjustment’ for an employee who would be regarded as disabled, for the purposes of the Equality Act 2010.  It is therefore recommended that you seek legal advice before rejecting an appeal as being out of time, as it could significantly impact on an Employment Tribunal’s view as to whether any dismissal is unfair.

So far as possible any appeal should be dealt with impartially and heard by someone who has not been previously involved in the process.  Most appeals are a review of the disciplinary decision, rather than a complete re-hearing of the case.  There may be some cases where a re-hearing is appropriate, for example if the employee was absent for the disciplinary hearing and has not previously responded fully to the allegations.

As with the initial disciplinary decision, the outcome of the appeal will need to be communicated to the employee in writing.


Thanks Gillian for a great service and sticking to a fixed price agreement.

Deputy Director
Bristol

How can we help?

As an employer, one of your main goals will be to protect your business from any potential claims. This can often largely be avoided by seeking specialist advice from us at an early stage to ensure a fair, transparent and timely process is being carried out.

We can advise you throughout the process if required, from the point the misconduct allegations arise through to any appeal, as well as advising on ad hoc difficulties that may arise throughout the process. You can be assured that at all times we will take a practical and pragmatic approach to support the commercial needs of your business whilst aiming to minimise the risk of litigation.

For expert advice on all aspects of disciplinaries and dismissals from our specialist employment law solicitors, please either call us on 0117 290 0905 or complete a Free Online Enquiry and we will soon be in touch with you.