Yes, we absolutely 100% do! The Acas Code of Practice on Disciplinary and Grievance Procedures (https://www.acas.org.uk/acas-code-of-practice-on-disciplinary-and-grievance-procedures) requires employers to have rules and procedures for handling disciplinary situations set down in writing. The procedure needs to be specific and clear.

We would also really recommend that you have a policy that sets out expected behaviours in the workplace. Whether you call this your code of conduct or disciplinary rules, it’s up to you. But the clearer you are on expected behaviours, the easier it is to deal with things where somebody doesn’t meet those.

Precept have a document bank that clients can access which has a wealth of template documents and guidance notes available, this includes a template disciplinary procedure and disciplinary rules. You can out more here.

Where possible, everybody is encouraged to deal with issues in the workplace informally in the first instance to try and avoid matters escalating to a formal process. Part of this is about having an open workplace where communication is encouraged, that way employees will be aware of where they’re not meeting behavioural expectations and managers will feel able to address this.  

So, if we spot minor issues in somebody’s behaviour, we should try to deal with this informally in the first instance.  Meet with the employee, flag the concerns (providing specific examples) and agree expectations moving forward, making clear if matters continue we may have to escalate to a formal process. It’s still really important to keep a record of discussions and agreed actions.

If, however, we’ve tried to deal with issues informally and that hasn’t worked or the concerns about somebody’s behaviour are more serious, we should move to a formal disciplinary process.

Not sure where your situation lies? We would be more than happy to chat it through with you, get in touch with us today, call us on +44 (0) 1332 866610 or email enquiries@precepthr.com to speak to a member of the team.

There are some key guiding principles that we really want you to know about and which should factor into how we deal with disciplinary processes. These are that we should:

• Avoid unreasonable delay;
• Undertake reasonable investigations (see below);
• Deal with matters fairly and consistently;
• Allow the employee the chance to present their case;
• Allow the employee to be accompanied by a colleague or trade union representative at the disciplinary hearing.

This depends on the circumstances. We have to ensure that suspension is reasonable in the circumstances. So, we have to look at the seriousness of the offence and what we are trying to achieve in suspending. For example, are we trying to avoid the employee interfering with the process or are we trying to protect the rights of either the employee or any complainants or witnesses?

Before we suspend, we should consider if there are steps short of suspension that will address the issues we’ve identified. For example, could we temporarily restrict IT access or redeploy the employee to another part of the organisation? If so, we shouldn’t suspend.

Suspensions will be on full pay (although we should make clear that if the employee becomes unfit for work during their suspension, they must report this in the normal way and they will then move onto sick pay) and the decision should be communicated clearly in writing. The suspension should be kept under review and should only last as long as is reasonably necessary.

Need help with a suspension process? We can draft the letter for you and a meeting script, we can even hold the meeting for you if needed.

Get in touch with us today, call us on +44 (0) 1332 866610 or email enquiries@precepthr.com  to speak to a member of the team about how we can help.

Absolutely we do! The Acas Code and case law in this area requires us to undertake a reasonable investigation into concerns that are identified so that we can make reasonable and informed decisions. One person should be appointed to investigate the concerns. They should be impartial and have had no dealings with matters before.

What a “reasonable” investigation looks like will very much depend on the circumstances of each case. Generally though, the job of person investigating is to try and establish the facts of what’s gone on. They should take a balanced approach to this, looking for all reasonable evidence and not just evidence of guilt. They should review relevant documents like emails or Teams messages, review any CCTV or listen to any recordings and meet with relevant witnesses (including the employee facing the allegations), ensuring proper notes are taken and witnesses confirm both that the notes are accurate and they are happy for them to be shared.

Once the investigation has been completed, the person investigating should produce a full investigation report. This should set out the steps they have taken to investigate, including who they have spoken to and the documentary evidence they have reviewed. The report should summarise the evidence and set out facts that have been established and facts that it has not been possible to establish. The report should also make recommendations about whether the matter should progress to a disciplinary hearing. It should not recommend sanctions.

Precept can help with investigations, either guiding with legal advice or taking the reins and actually doing the investigation for you. You can find out more about the support we offer here.

As we say above, employees need to be given the chance to present their case and this involves meeting with them at a formal disciplinary hearing, following the conclusion of the investigation, to listen what they have to say about their alleged wrongdoing. The hearing should be chaired by an individual in the business who has not been involved in matters before (i.e. not the investigating officer and not a witness).

Remember those principles we spoke about? The meeting should take place as soon as without delay (we say they should normally be given between 2 to 5 working days’ notice of the hearing) and the employee should be given all evidence from the investigation (including report) ahead of the hearing and informed of the right to be accompanied by a colleague or trade union representative.

The hearing should be used to allow the employee to respond to the allegations they are facing and to provide any mitigating circumstances (factors that, if the allegations are found proven, might justify or explain the misconduct and which may warrant a lower sanction being issued).

A full note should be taken of the hearing and a copy should be sent to the employee afterwards for them to confirm if it’s accurate.

We may wish to have a HR representative present to assist with any HR related matters that crop up during the meeting – there’s absolutely nothing wrong with that. If you don’t have HR in your business, then we can help – find out more here.

Following the meeting, we may wish to undertake further investigations before we make any decisions. The person hearing the disciplinary can undertake any further investigations they wish to, so long as the employee facing the allegations has chance to respond to any new evidence obtained before any decisions are made.

We have to decide on the balance of probabilities (i.e. 51% sure) that was is alleged to have happened has happened. If we think it has then that aspect of the allegations should be upheld and we should consider what sanction is appropriate to deal with the misconduct. If we don’t think it has, then the allegation should not be upheld.

The sanction that will be applied will depend on a number of factors including:

• Whether the employee’s actions amount to misconduct (which usually warrants a lower sanction) or gross misconduct (which usually warrants dismissal without notice);
• Whether there are any mitigating circumstances that might warrant a lower sanction (for example, if somebody has been employed for a long time, this is a first offence and they have admitted wrongdoing and apologised, that is likely to warrant a lower sanction);
• How we have dealt with similar matters in the past – consistency is key.

As we say, employee’s should not normally be dismissed for a first offence, unless their actions amount to gross misconduct (i.e. really serious, deliberate wrongdoing that makes the employment relationship irreparable). Instead, we should look at issuing sanctions on a sliding scale so:

• First written warning;
• Final written warning;
•  

Warnings will remain live on an employee’s file for a period (usually between 6 – 12 months depending on the level of warning) and will confirm that if further incidents of misconduct occur whilst the warning is live, this may result in further disciplinary action being taken at the next highest level.

The outcome should be provided in writing to the employee, setting out the reasons for the decision that has been reached.

Gross misconduct might include (but remember this list isn’t exhaustive!):

• Theft, fraud or deliberate falsification of records;
• Physical violence or threats of violence;
• Unlawful discrimination, harassment or sexual harassment;
• Serious bullying;
• Deliberate or wilful damage to property;
• Serious insubordination;
• Being under the influence of alcohol or drugs at work;
• Brining the employer into serious disrepute
• Breach of data protection or confidentiality.

Yes, employees should be given the right to appeal the outcome of the disciplinary

Again, we have to follow the Acas Code here and that requires us to give employees the right to appeal the outcome of any formal sanction issued as part of a disciplinary. A clear deadline should be set for the employee to submit their appeal. The grounds of appeal should be in writing and sent to a nominated person in the business who has had no dealings with matters previously and who is more senior than the person who made the decision in the disciplinary.

The employee should be invited to an appeal meeting (with the right to bring a companion again) and this can take one of two forms.

The appeal meeting can either be a full rehearing of the disciplinary process if the person dealing with the appeal things the process has been flawed or it can be limited to hearing the grounds of appeal set out by the employee. Any appeal outcome is final and the employee has no further internal steps they can take.

Failure to properly deal with a disciplinary has consequences both in practical and legal terms.

First, the practical. We are likely to have an angry or unsettled employee and this can lead to them acting inappropriately at work or leaving the workplace altogether. That can cause a bigger headache in the long run.

Second, the legal. If the employee does resign, they might try to claim constructive dismissal (i.e. that we’ve breached their contract and they had no choice but to resign as a result). They might also say that our handling of the disciplinary was discriminatory. If we dismiss and the process hasn’t been dealt with properly, we risk an unfair dismissal claim. At the very least, if they were to go Tribunal and succeed in a claim related to the disciplinary, the Tribunal could increase any financial award they receive by up to 25% unless we have a reasonable excuse for not following the Acas Code.

So, if we get things wrong, Tribunal claims can follow. Don’t be worried though, Precept have a team of expert litigators on hand to help. You can find out more about our Employment Tribunal work here.