Tips for Employers carrying out Disciplinary Processes
Knowing what your disciplinary process is and how to use this effectively is a valuable tool for any business. Having a process in place helps monitor standards of conduct, ensures fair treatment where issues arise and reduces the risk of disgruntled employees bringing claims before the Employment Tribunal.
We have put together a list of tips to keep in mind when beginning to carry out a disciplinary process
Tip #1 – ensuring you use the correct procedure
Where an employee with over two years’ service has been dismissed, you need to be able to show 1) you had a fair reason to do so and 2) that a fair procedure was followed throughout.
There are 5 reasons an employer can rely on to show a dismissal was fair. These are reasons relating to Conduct, Capability, Redundancy, Illegality and Some Other Substantial Reason (‘SOSR’). An employer will then need to show they followed a fair procedure in reaching the decision to dismiss. For example, an employee with over two years’ service is dismissed on the grounds of gross misconduct for stealing from the business. The reason to dismiss i.e. conduct may be a fair reason but if a fair process was not followed by way of an investigation or disciplinary hearing then the employee is likely to succeed in bringing a claim for Unfair Dismissal.
If the employee pursued the claim to the Employment Tribunal and a Judge agreed the employer had failed to follow the relevant procedure, they can increase the employees compensatory award by 25%.
Tip #2 – be clear about the allegations or the performance issues
When carrying out these processes, it is important to show fairness in setting out clearly what the allegations against the employee are. Any investigation or disciplinary hearing will be centred around these allegations and so it is only fair that these are made clear to the employee for them to understand and respond sufficiently.
Tip #3 – ensure a proper investigation is carried out
Where an allegation is made against an employee, an employer should carry out a reasonable and thorough investigation to gather any relevant evidence before deciding whether formal action should be taken. This is important as the information and evidence obtained will form the basis of any future action.
The investigation is essentially a fact-finding exercise to decide if there is a case to answer. This is not an exercise to decide culpability. It is therefore expected that the investigating officer would give time and attention to establish facts and obtain evidence in support of the employee’s case. The investigating officer would then consider the evidence obtained and make an objective decision as to whether there is a case to answer. If so, the matter is escalated to a disciplinary hearing.
Tip #4 – ensuring you have adequate clear records of the disciplinary process
A general disciplinary process covers three main stages: an investigation hearing, a disciplinary hearing, and an appeal hearing. It is important to show a paper trail of everything that happened at each of these stages in case this needs to be referred to or relied on for future hearings or for use at an Employment Tribunal claim.
This paper trail should include any evidence obtained or presented during the hearings, any correspondence between the partied including invites to hearings and accurate notes of the hearings that took place.
Author: Shamaila Gul, Employment Law Solicitor at Howarths