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Disciplinary procedures

Overview
Rice-Birchall, Helen - Eversheds LLP
Overview
Disciplinary rules and procedures underpin the employment relationship, providing an employer with an opportunity to set out clear rules about the way its employees should behave and the standards it expects of them.
This section provides information on:
  • disciplinary rules and procedures
  • the fair handling of disciplinary issues
  • the rules of natural justice
  • the overlap between capability and disciplinary issues and
  • the overlap between disciplinary and grievance procedures.
All employees must have a written statement of terms and conditions of employment which must contain disciplinary rules and procedures or refer the employee to some other easily accessible document containing those rules and procedures.

Key points

  • The Acas Code of Practice on Disciplinary and Grievance Procedures provides basic practical guidance to employers, employees and their representatives and sets out principles for handling disciplinary ...situations in the workplace." It is advisable that written disciplinary procedures, and disciplinary proceedings, comply with the code.
  • Although a failure to follow the code does not make an employer liable to legal proceedings in itself, employment tribunals will take the code into account when considering relevant cases.
  • Many disciplinary issues can be resolved informally with a quiet word. However, where informal resolution is not possible, then a disciplinary procedure will set out the appropriate way to deal with the issue.
  • Most disciplinary procedures allow for verbal, written and final warnings before dismissal is considered. However, it may also specify that certain conduct is so serious that it will be considered as gross misconduct and will justify summary dismissal (without warnings or notice).
  • Before holding a disciplinary hearing and deciding on the appropriate sanction in any given case, the facts of the case must be properly investigated. The more serious the matter is, the more extensive those investigations should be.
  • No disciplinary action should be taken until the employee has had an opportunity to give his or her side of the story.
  • An employee who is disciplined should always be given the right to appeal against that decision.
New ACAS guidance on procedures during coronavirus pandemic

The Advisory, Conciliation and Arbitration Service (Acas) has issued guidance on the best practise for dealing with disciplinary and grievance procedures in cases that may arise during the coronavirus pandemic.

Usual rules surrounding the right to be accompanied, the right to appeal and the right to bring a claim to the employment tribunal for unfair dismissal apply. 

Going ahead with the procedure 

Organisations should first decide if it’s fair and reasonable to carry on with a procedure while:

  • people are on temporary leave because of coronavirus - for example, furloughed
  • social distancing and other public health guidelines are being followed
  • people are working remotely, meaning the procedure would have to be carried out remotely.

Any procedure needs to follow public health guidelines around social distancing and closing of certain business premises. Organisations will need to consider the health and wellbeing of employees, given that these procedures in normal times can be stressful.

Management should discuss options with everyone involved before making decisions on whether the procedure should proceed. This decision should also be clearly outlined to everyone. If the procedure is to take place in the workplace, it should be considered whether it can still be carried out in a way that is compliant with public health guidelines.

If some staff involved are either remotely working or furloughed, organisations should consider if the procedure would still be fair and if anyone would have a reasonable objection to it going ahead. 

Participation of furloughed staff

Furloughed staff can take part in a disciplinary or grievance investigation meeting and/or hearing, such as if they are

  • under investigation themselves
  • the one who raised the grievance
  • chairing the hearing
  • taking notes at the hearing or in an investigation meeting
  • being interviewed as part of an investigation
  • a witness
  • an employee’s companion

They must, however, be voluntarily doing this and this must be done in line with the current public health guidance.

Holding video conferences

If the procedure will involve video meetings, organisations should also consider:

  • if everyone has access to the appropriate technology, including the internet
  • if anyone has a condition or disability that may impact upon their use of this
  • if any evidence or statements will be able to be clearly seen and fairly assessed
  • if it will be possible to consider all evidence necessary
  • if it is possible for the right to be accompanied to still be allowed.

Video meetings should only be recorded if this is done in line with data protection law.

Right to be accompanied

The companion must still be able to put and sum up the case, respond on behalf of the employee and talk privately with them. Usual rules surrounding their being unable to attend the meeting apply, however the coronavirus pandemic may impact upon availability. In this case, organisations should consider how long they should reasonably delay.