Employment Law

Here’s Why You Need To Make Your Disciplinary Process Impartial (And How To Do It)

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Here’s Why You Need To Make Your Disciplinary Process Impartial (And How To Do It)

When it comes to handling disciplinaries, grievances and capability procedures with staff, most small businesses find it overly complex to think about which members of their staff are best suited to deal with and hear the different stages that are involved in the process.
And that’s understandable ; SMEs have lots of other things to be thinking about to ensure the smooth running of the business. For some businesses where teams are small, it may be virtually impossible to create a structure for who deals with the different stages of these processes due to a lack of senior staff.
Examples of the different members of staff that might interact with the disciplinary process could include a line manager or team leader dealing with any acts of misconduct informally and then conducting initial disciplinary hearings, followed by the company director hearing an appeal if the process got to that stage.
With some workplace policies, such as anti-bullying and harassment, it’s best to have someone else who can carry out the middle of the process; a more senior manager, such as a head of department or CEO (but only where there is a board member to hear the appeal). This person can then investigate the accusations thoroughly and submit a report on their findings. This is especially important in harassment claims, which often pose a risk of legal claims if they are established and not dealt with effectively.
While it’s difficult for small and medium-size businesses who often don’t have in-house HR support, (why would you employ a HR manager if you’re not thinking about problems arising?) it is important to try and find a medium ground so that the on a fair process can be followed. After all, it is always typical that when resource is disregarded, the reason that you thought you didn’t need it in the first place suddenly appears and needs to be dealt with.
If the ACAS guidance isn’t properly followed, and the result of any finding is dismissal, then a claim of unfair dismissal can almost certainly be made, even when the employee involved was undoubtedly at fault. Think about it this way; if you’re a director of a small business and have heard all parts of a hearing or investigation, you’re  unlikely to decide to overturn your own decisions if your employee was to appeal. Whether this is right or wrong is irrelevant: the fact is, there was never anyone impartial for your employee to appeal to, and you will have effectively denied your employee a fair appeal process.
In this instance, you’re stuck between a rock and a hard place, so what are you meant to do? First of all, don’t worry! Even if you lack senior staff, you can still utilise the resources  you do have so that when it comes to getting professional documentation drafted for disciplinary, grievance and capability procedures (which you definitely do need!), you have a plan as to who you will involve at each stage of the process.
Here are some top tips on how to plan who can be involved in the process:

  • If you have staff of different levels of seniority, then great. Be sure to let them know in advance that grievances, disciplinaries and capability procedures will form part of their job role. Perhaps you could provide them with some specific training on how  to conduct these processes?
  • If you are missing employees from mid-management levels but have more than one director, then – based on the proviso that one director remains completely detached from the initial hearing-the other (without any guidance or help from the director hearing the initial hearings), can undertake any appeals. In processes such as bullying and harassment, the investigations (which should be held by someone impartial from the person who hears the first and appeal stages) can be held again by the first director. This is because the most important assurance you can make as a business in this context, throughout documentation and in practice, is that the person hearing the appeal is completely separate.
  • If you only have one director and no other management, perhaps you have senior or other well-respected office/admin staff who are attuned with attention to detail.  Can you bring  them up to speed with the relevant policies and processes, so they can chair the initial meetings and investigations? Again, perhaps some training would be useful in this context.
  • Alternatively, the Howarths HR Projects team are well-equipped and renowned for their experience and impartiality in chairing hearings and appeals. Investing in a service such as this can free up  the time it takes  to train employees to give them the necessary confidence, as well as removing the expectation on existing staff to have capacity that often just is not there.

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