An employer can start formal disciplinary action against an employee if they have concerns about their work, conduct or absence.
Before taking formal disciplinary action or dismissing an employee, an employer may try to raise the matter informally. However, they can go straight to their formal disciplinary or dismissal procedures. It is relevant that, where an employee has less than 2 years’ service, an employer is not obliged to go through a full disciplinary process with their employees where they have conduct concerns as those employees are not eligible to bring unfair dismissal claims.
Disciplinary procedures are a set way for an employer to deal with disciplinary issues. They should include a disciplinary hearing where an employee is given a chance to explain their side of the story.
There should also be a chance to appeal any disciplinary action an employer decides to take.
How do the procedures work?
Any employer’s disciplinary procedures should follow the Acas code of practice.
The employer should put their disciplinary procedure in writing, and make it easily available to all staff, typically in a staff handbook. This should say what performance and behaviour might lead to disciplinary action and what action an employer might take. It should also include the name of someone the employee can speak to if they do not agree with your employer’s disciplinary decision.
Disciplinary steps
A disciplinary procedure should include the following steps:
- A letter setting out the issue.
- A meeting to discuss the issue.
- A disciplinary decision.
- A chance to appeal this decision.
Why it is important for an employer to follow a fair disciplinary procedure?
The Acas Code of Practice on disciplinary and grievance procedures is the minimum a workplace must follow. Although the Acas Code is not the law, if a disciplinary case reaches an employment tribunal, judges will take into consideration whether the employer has followed the Acas Code in a fairway.
Looking after employees’ wellbeing and mental health
Going through a disciplinary procedure can be very stressful, so it’s important that employers consider the wellbeing and mental health of their employee.
Looking out for the employee’s wellbeing and offering support can help prevent:
- absence
- mental health issues arising
- existing mental health issues getting worse
For example, as well as regular communication, the employer could arrange any meetings in a more private and comfortable location if this would help the employee.
Misconduct is when an employee’s inappropriate behaviour or action breaks workplace rules.
Some misconduct examples include:
- bullying
- harassment
- refusing to do work (‘insubordination’)
- being absent without permission (some people call it absent without leave or ‘AWOL’)
If misconduct happens outside the workplace
An employee could face disciplinary action for misconduct outside work, for example, where an employee’s behaviour in front of external clients at the work Christmas party reflects badly on the company.
It depends on how serious the employer views the misconduct as and whether it could have a bad effect on the business.
It’s important the employer carries out a thorough investigation and can show the effect on the business.
When there is gross misconduct
Some acts count as ‘gross misconduct’ because they are very serious or have very serious effects.
If an employer finds there has been gross misconduct, they should still carry out an investigation and the full disciplinary procedure. They might then decide to dismiss any employee without notice.
Examples of gross misconduct in the workplace could include:
- fraud
- physical violence
- serious lack of care to their duties or other people (‘gross negligence’)
- serious insubordination, for example refusing to take lawful and reasonable orders from a supervisor
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Disclaimer
Please note this blog is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action. Please contact us if you have any questions on enquires@thrivelaw.co.uk
