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
The purpose of any disciplinary procedure is to help and
encourage all employees to achieve and maintain standards of conduct, attendance
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.
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
together with all rights which the employee has under the contract including
payment of salary/wages.
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
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.
The following procedure should apply in cases of
minor acts of misconduct:
1. Oral Warning
2. First Written Warning
3. Final Written Warning
In relation to the above, the employer should reserve the
right in the disciplinary procedure to instigate the procedure at any stage
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
for a first offence if the offence is serious but falls just short of gross
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.
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.
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
- 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
- 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.
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,
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
- 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
- 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.