The importance of having a disciplinary policy

At some point employees' behaviour will fall below what is expected of them, and you will be faced with considering how to deal with an awkward situation. So what are the rules? Having a Policy in Place A good starting place is your disciplinary policy. It will probably identify types of behaviour that you should think of as ‘gross misconduct’, that is behaviour so serious that, if proven, warrants dismissing the employee immediately and without pay in lieu of any notice. Typically, you will find theft, dishonesty, violence, serious breaches of health and safety, gross negligence and so on, are considered to be gross misconduct. But what about behaviour that is not so serious? Your disciplinary policy should also clearly identify what behaviour is considered to be misconduct, that is usually minor offences such as lateness, rudeness to colleagues or clients, appearance or minor breaches of procedure and the disciplinary action that may be taken for such misconduct. Dealing with misconduct Your disciplinary policy should provide for a staged process and in most circumstances, the first is speaking to the employee informally. Here it is usually more effective to demonstrate that you are being supportive, so ensure that you have somewhere private to speak to the employee so that you can have an uninterrupted, two-way conversation. Explain what it is of their behaviour that you are unhappy with, why their behaviour is not meeting that standard, and what effect their current behaviour is having. Invite the employee to explain their point of view. It may there is an issue that you were unaware of that you can help resolve. For example, the employee may reveal that their recent lateness for work is due to an issue with their current child-care arrangements. So rather than disciplining the employee, you may choose to adjust their working hours, either temporarily or permanently, to help them. However, if the informal approach is not successful, it is important that repeated misconduct does not go unaddressed. You will inevitably have to speak to the employee at some point and the longer they have been allowed to behave unacceptably without challenge, the more likely they are to be aggrieved and uncooperative when action is taken. The next stages The next stage along the way is to rely on warnings, often on an increasing scale of: a verbal warning, followed by a written warning, a final written warning and, ultimately, dismissal. While that may seem straightforward, it can be difficult to decide at what point to take disciplinary action. You should always be consistent when disciplining employees, however, that can be difficult to achieve as it is rarely a case of “one size fits all” and the action you take will depend on the circumstances of the case. At this point you may decide that a more authoritarian approach is appropriate given that an informal approach has been unsuccessful. The approach you adopt will ultimately depend on the nature of the misconduct, the individual employee and the stage you are at in the disciplinary process. If you are at the point of issuing a verbal warning then you may still be fairly informal in your approach. If the employee has continued to behave poorly and you are issuing a final written warning, you are likely to take a more authoritarian approach to emphasise the seriousness of the matter, particularly as the next stage in the process could be dismissal. Issuing a formal warning When proceeding with formal disciplinary action, it is important that you adopt a fair process. Should you find yourself before an Employment Tribunal, one of the factors the judge will assess is whether the procedure you followed was fair and reasonable. As part of a fair process, you should ensure that an investigation is carried out to establish the facts. The nature and extent of the investigation will depend on the circumstances of the case - it may simply require the employee in question being asked questions or it may need witnesses such as colleagues to give statements, records checked and CCTV footage reviewed. If, once you have established what appears to have gone on and why, you decide disciplining the employee remains a possibility then the employee should be invited to a disciplinary hearing. If possible, the person who conducted the investigation should not be the same person to conduct the disciplinary hearing. The disciplinary hearing should be arranged promptly whilst giving the employee sufficient time to prepare; a minimum of 24 hours’ notice is usually provided however your disciplinary policy may provide for a longer period or you may decide a longer period is needed due to the particular circumstances, for example, when there are numerous investigation documents. The employee should be notified of the disciplinary hearing in writing and the letter should confirm:

• the allegation against them;
• that they have the right to be accompanied by a work colleague or trade union representative;
• the potential outcome of the hearing, for example, a first written warning; and
• the date, time and location of the hearing.

The employee should also be provided with a copy of all of the documents collated during the investigation. When holding the disciplinary hearing, allow the employee to respond to the allegation against them and comment on the evidence; this is the employee’s opportunity to state their case and you should listen and consider their response. Once you have decided on the appropriate action, for example, to issue a first written warning, reconvene the disciplinary hearing to confirm your decision to the employee. Once the disciplinary hearing has been concluded, you should also confirm your decision in writing and, where a warning has been issued, confirm when the warning will expire. Finally, whenever any disciplinary sanction is imposed, the employee should be given the opportunity to appeal against the decision. Where possible, the person who has conduct of the appeal hearing should be different to the person who conducted the investigation and disciplinary hearing. Lastly, if nothing changes then you will need to consider terminating the employee’s employment as a result of their repeated misconduct.   Lee Ashwood is an employment law solicitor at law firm Eversheds LLP.