DAVID ROYDEN - EMPLOYMENT SOLICITOR
UK EMPLOYMENT LAW

David Royden is a Partner with Laytons Solicitors and Head of Employment Law, Manchester, UK

Laytons Solicitors is a national law practice specialising in all aspects of Company and Commercial Law

Laytons Solicitors, 22 St John Street, Manchester M3 4EB.
Tel: +44 (0) 161 834 2100
Fax: +44 (0) 161 834 6862

Offices at London, Manchester and Guildford, UK

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DISCIPLINARY

There will often be occasions where an employer has an issue with an employee’s conduct usually, but not always, whilst at work. The employer should have in place an appropriate disciplinary procedure which should be followed when this situation arises.

The purpose of any disciplinary procedure is to help and encourage all employees to achieve and maintain standards of conduct, attendance and job performance and to ensure that any failure to observe the employer’s rules is fairly dealt with. However, the employer will also be required to demonstrate that a fair procedure has been followed if it becomes necessary to consider dismissing an employee for an act or series of acts of misconduct.

Investigation

In serious cases of misconduct no action should be taken by an employer before a proper investigation has been carried out relating to the circumstances of the matter complained of. If appropriate, the employer may consider suspending an employee from work for a specified period whilst the investigation is undertaken. However, if the employee is suspended their contract of employment must continue together with all rights which the employee has under the contract including payment of salary/wages.

Disciplinary Hearing

If as a result of the investigation it appears that an act of misconduct has been committed the employer should proceed with a disciplinary hearing. The employee should be given details in writing of the complaint sufficiently in advance of the hearing in order to permit them to prepare themselves. At the hearing the employee should be given the opportunity to state their case and the employee should also be permitted to be accompanied by a fellow employee of their choice.

Minor Acts of Misconduct

Misconduct offences broadly fall within two categories – those that justify instant dismissal without notice or payment in lieu (often referred to as gross misconduct) and less serious offences which may ultimately lead to dismissal with notice if repeated more than once.

Examples of the latter category include bad time-keeping, unreasonable or unexplained absence, persistent or irregular absenteeism, minor damage to an employer’s property, smoking in no-smoking areas, use of obscene or offensive language, etc. It is highly advisable for employer’s to set out a non-exclusive list of examples in their disciplinary procedure.

Procedure

The following procedure should apply in cases of minor acts of misconduct:

1. Oral Warning
2. First Written Warning
3. Final Written Warning
4. Dismissal

In relation to the above, the employer should reserve the right in the disciplinary procedure to instigate the procedure at any stage if appropriate and/or, if necessary, to omit any particular stage depending on the severity of the misconduct. This would, for example, permit an employer to issue a final written warning for a first offence if the offence is serious but falls just short of gross misconduct.

Gross Misconduct

Examples of gross misconduct include theft, physical assault, breach of duty of confidentiality, sexual or racial harassment, fighting, wilful damage to an employers property, sale and/or consumption of alcohol or drugs at work or being under the influence of alcohol or drugs at work, and failure to comply with lawful and reasonable instructions, etc. Once again, it is highly advisable for employer’s to set out a non-exclusive list of examples of gross misconduct in their disciplinary procedure.

Appeals

An employee should always be given the chance to appeal against any disciplinary decision taken against them. The appeal should be chaired, if possible, by someone who was not party to the investigation into the offence or the subsequent disciplinary hearing. At the appeal the employee should be entitled to attend to state their case and to be accompanied by a fellow employee of their choice.

PROCEDURE CHECKLIST

If in doubt always refer to the following procedure checklist when conducting a disciplinary procedure:

  • All relevant facts should be gathered promptly before memories fade. If necessary statements should be taken and documents collected. In serious cases suspension should be considered with pay while an investigation is conducted
  • The complaint must be clear and the question should be asked is action needed at this stage
  • If action is needed it is necessary to decide if that action should be advice and counselling, or, formal disciplinary action
  • If formal action is required a disciplinary interview should be arranged. It is necessary to ensure:
    - the employee is aware of the nature of the complaint and that the interview is a disciplinary one
    - that the employee is told where and when the interview will take place and of their right to be accompanied
    - that if possible a second member of management is present.
  • At the beginning of the interview those present should be introduced and the purpose of the interview explained. Also the employee should be informed of the nature of the complaint and given details of supporting evidence.
  • The employee should be allowed to state his case and consideration should be given to any explanations put forward.
  • If new facts emerge it may be necessary to decide whether further investigation is required. If so the interview should be adjourned and re-convened when the investigation is completed.
  • Unless the case is very straightforward an adjournment should be called before reaching a decision. A clear view needs to be arrived at on the facts, and if they are disputed it will be necessary to decide on the balance of probability what version of the facts is true.
  • Before deciding on the penalty consideration must be given to:
    - the gravity of the offence and whether the disciplinary procedure gives guidance
    - the penalty applied to similar cases in the past;
    - the employee's disciplinary record and general service;
    - any mitigating circumstances;
    - whether the proposed penalty is reasonable in the circumstances.
  • The disciplinary interview should then be re-convened to clearly inform the employee of the decision and penalty, if any. The employee's right of appeal and how it operates should be explained. In the case of a warning the improvement expected, how long the warning will last before further action is taken, and the consequences of this further action on a failure to improve should all be explained.
  • A record of the action taken needs to be made. If more than an oral warning has been given the disciplinary action must be confirmed to the employee in writing and a simple record of the action kept on file for future reference.
  • The employee must be given the right of appeal. If the right of appeal is exercised by the employee a further hearing should be arranged. This should be chaired by a higher level of management if possible, specifically someone not involved in the disciplinary process itself. The employee should be given, once again, the opportunity to state his case and put forward any explanations.
  • The emphasis on the appeal hearing is to ensure the disciplinary hearing was carried out correctly, the evidence presented appropriately, and the employee given the opportunity to present his case. It does not need to be a re-hearing of the original disciplinary hearing unless there have been procedural errors which need to be addressed, or new evidence has come to light. In such circumstances a re-convened disciplinary hearing usually should be called and the process commenced again.
  • Finally, the employee's performance should be monitored. The disciplinary action should be followed up with the object of encouraging improvement and progress should be regularly discussed with the individual.

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