Managing misconduct in the workplace is not an easy task. It is time consuming, impacts on production and can sometimes not achieve the outcome desired. Many employers find themselves asking; “is it really worth it?” From a fairness and legal point of view, it certainly is; but getting it right from the outset is key to not only setting standards and achieving good work output but also protecting the business from employment tribunal claims.
There are some dangers when it comes to instigating disciplinary action. The implications of getting it wrong can be costly. In this article we explore some of the main challenges employers face when addressing misconduct in the workplace.
Conduct or Capability?
Capability (commonly known as poor performance) and misconduct are often misunderstood. They are two separate issues and two very distinct potentially fair reasons for dismissal. Conduct relates to an employee’s behaviour whereas capability is when an employee is unable to attain expected standards of performance. It could be that the employee is lacking in skill or ability or needs additional training which is resulting in a poor standard of work. In conduct cases, the employee’s ability is not the issue, and it is more about whether they “won’t” do something or behave in a manner which is appropriate or in breach of company policies and procedures.
Employers need to establish at the outset if the issue they want to address is conduct or capability. Whilst both matters are tackled by issuing formal warnings via a correct process, there are further obligations placed on an employer in capability cases. Dismissals can be rendered unfair if an employer dismissed for the wrong reason or mixes up the two issues and builds incorrectly on previous warnings.
The decision to suspend an employee is often misjudged. Suspension should not be an automatic response and only used in limited circumstances. Both the ACAS Code of Practice and case law establishes that suspension is not to be used as a punishment or due to a pre-determined outcome. It is only suitable in cases where the business or employees need protecting and it would be a risk if the employee remained at work whilst an investigation was being carried out or if the investigation could be tampered in anyway if the employee remained at work. Other alternatives such as moving the employee to a different work area should be considered first.
Suspension in a disciplinary process should be on full pay to avoid an unlawful deduction from wages claim. There are limited exceptions to this, such as cases where the employee is not willing or is unable to attend work (for example because they are ill) and possibly where there is a clear contractual right. You should seek advice when making a decision to suspend, particularly without pay.
ACAS Code of Practice
The ACAS Code of Practice on disciplinary and grievance procedures, sets out the minimum standard an employer should follow when addressing such matters. The employment tribunal will take into consideration if the Code has been applied correctly or not at all, when assessing the fairness of any dismissal. In addition, the tribunal has the discretion to award an uplift of up to 25% to any compensation for a failure to follow the Code. It therefore pays to get it right!
In most cases an investigation is necessary to gather facts and evidence. Failure to carry out a thorough investigation is likely to render a warning or dismissal unfair. The Code states that an employer does not need to hold an investigation meeting with the employee, but it is strongly advisable.
- Right to be accompanied
An employee does not have the right to be accompanied at an investigation meeting. However, employees do have the right to be accompanied at both the disciplinary and appeal hearings by a work colleague, trade union representative or an official employed by a trade union.
Wherever possible different people should chair the different stages of the process and ideally a more senior person should be used as the process progresses. Some companies choose to outsource the task of chairing a disciplinary or appeal hearing or have a Solicitor present. It is important to note that this can come with risks of procedural unfairness especially if it appears that the external person is the decision maker.
- Disciplinary hearing
A disciplinary hearing should be arranged in writing confirming the date, time and venue and notifying the employee of their right to be accompanied. In addition, the letter should include both the allegations against the employee, the possible consequences if they are proven and all evidence gathered as part of the investigation process whether this be supportive of the allegations or not.
- Written outcome
All disciplinary sanctions should be confirmed in writing and the right of appeal should be also be included. Details of how long the warning will remain on the employee’s record should be provided and in dismissal cases, whether this is with or without notice.
If the employee appeals the disciplinary sanction an appeal hearing should be arranged. A written outcome should be provided, and this will usually end the process unless there is more than one appeal stage.
Procedures and Training
It is best practice for employers to have a written disciplinary procedure that is provided to employees, usually within the staff handbook. Whilst the above sets out key requirements of the process, there is still a lot more detail that can be provided to an employee to help them understand the procedure but also to protect the business.
How Hopkins Employment Law Team can help
At Hopkins we can provide advice on any disciplinary process and assist with the drafting of policies, procedures and employment contracts. We also offer training sessions, in particular, training for managers on how to implement and manage disciplinary and grievance processes correctly.
Get in touch today.
Contact us our Employment Law Team today on 01623468468 or 01159105555.
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