This article was last checked in May 2016 and is up to date
This article sets out a brief guide to the law - and highlights other points about which employers should be aware - around taking disciplinary action against an employee. It is not, however, an exhaustive list.
Key legal principles
If an employer dismisses an employee for misconduct or poor performance and that employee pursues a claim for unfair dismissal in the employment tribunal, there will be a two-stage test at the hearing to determine if the dismissal was fair:
- The employer must show that the main reason for the dismissal relates to the capability or conduct of the employee; and
- The tribunal must be satisfied that, in all circumstances, the employer acted reasonably and adopted a fair procedure before dismissing the employee. This means adopting a fair, transparent and consistent disciplinary procedure.
Disciplinary rules and procedures
Fairness and transparency are promoted by the employer having clear written rules covering, for example, such matters as absence; use of the practice’s facilities; and the types of conduct that could constitute ‘gross misconduct’, together with a clear disciplinary procedure, to which all employees have easy access. Although disciplinary situations include misconduct and/or poor performance, some employers prefer to have a separate capability procedure to address performance issues.
The ACAS Code
The ACAS Code of Practice on Disciplinary and Grievance Procedures (and the supporting non-statutory guide) provides practical guidance to employers. Failure to follow the ACAS Code does not, of itself, make an employer liable. Conversely, following it does not mean that the employer has dismissed the employee fairly.
However, the employment tribunal will take the ACAS Code into account when deciding whether the employer has acted reasonably or not. If the employee wins their case for unfair dismissal, the tribunal can increase their compensatory award by up to 25% if the employer has unreasonably failed to comply with the code.
The employer should consider whether formal disciplinary proceedings are necessary or whether, such as in poor performance cases, discussions might resolve the problem. Any warning at this stage should be verbal and strictly ‘informal’ and not placed on the employee’s disciplinary record or taken into account in future proceedings. However, the employer should keep a record of the informal discussion and any verbal warnings they have given.
An investigation is not a disciplinary hearing but a fact-finding exercise. In misconduct cases, investigation is likely to require an investigatory meeting with the employee and potential witnesses before proceeding to any disciplinary hearing.
In capability cases, the investigation may simply be the collation of evidence for use at the disciplinary hearing. In misconduct cases, different people should carry out the investigation and disciplinary hearing and, if possible, neither the investigator nor decision-maker should be a key witness.
This should not be a knee-jerk reaction. The employer must be satisfied it has reasonable grounds for suspension while an investigation is carried out. In cases of serious misconduct, there would be reasonable grounds to suspend an employee, who is being investigated, if there is a potential threat to the practice’s patients or other employees, or if the employee might try to influence witnesses.
The employer should suspend an employee with pay unless there is a clear contractual right not to pay the employee during suspension. Any period of suspension should be as short as possible and the whole disciplinary process should be carried out without unnecessary delay.
The invitation to disciplinary hearing
Once the investigation is complete, the employer should write to the employee confirming the outcome of the investigation and inviting them to a disciplinary hearing. The invitation should set out sufficient information about the alleged misconduct or poor performance and its possible consequences.
If the outcome could be dismissal, the employer should say so. The employee should normally be provided with copies of any evidence on which the employer intends to rely at the hearing and be asked if they have any documents/witnesses. The ACAS Code advises employers to inform the employee that they have a right to be accompanied at the hearing by a trade union representative or a colleague.
If the employee’s choice of companion is limited because of the size of the practice, the employer should consider whether to allow the employee to bring a family member or friend. There is generally no right to bring a lawyer to a disciplinary hearing.
Ill-health and stress
Often an employee involved in disciplinary proceedings absents themselves due to stress. If the employer believes stress has caused their poor performance or misconduct, it should consider dropping the disciplinary proceedings and assess the situation using the HSE’s Stress Management Standards.
If not, and their absence continues, the employer may, subject to the employee’s consent, obtain medical advice from the employee’s GP or an occupational health physician as to whether the employee may attend the disciplinary hearing. Fitness to attend a disciplinary hearing and fitness to work are not the same thing. If the matter cannot wait any longer, the employer could consider a telephone hearing or written submissions from the employee.
The disciplinary hearing
When deciding who should conduct the hearing, also consider who might hear any potential appeal. This is because the person who conducts any appeal should, if possible, be more senior than the person responsible for making the decision to dismiss or imposing the disciplinary sanction in the first instance.
If the employer is considering dismissal, they must genuinely believe, on reasonable grounds, that the employee is guilty of the allegation and any decision to dismiss is fair and reasonable in the circumstances, having regard, for example, to length of service and whether the employee has any live warnings.
- Susan Bernstein is a partner at OGR Stock Denton solicitors in north London