This article was first published in First Voice. Written by James Cresswell, Employment Solicitor, SA Law.
A recent Acas report concluded that, despite having the necessary policies and procedures in place, many small business owners lack confidence in resolving workplace disputes.
Such lack of confidence may lead to the outcome of the process being questioned, and premature financial settlements being offered to avoid the disciplinary process and any potential employment tribunal claims. Here’s how to ensure you are fully prepared for dealing with any disciplinary issues you may encounter.
Consider an informal approach
For minor issues such as isolated lateness and performance issues, consider whether the matter can be resolved without formal action. In some circumstances, an informal, off-the-record warning will be effective in alerting the employee to the problem and allowing the chance for improvement.
Investigate
If a formal process is required, first conduct a thorough investigation. Arrange an investigation meeting with the employee (this is not a disciplinary hearing), speak with witnesses, and obtain as much information as possible.
Consider if the employee should be suspended pending the outcome of the disciplinary process – this should be on full pay and for as short a time as possible. Suspension is generally only appropriate in circumstances where the employee’s alleged conduct potentially constitutes gross misconduct and it is not possible to put interim measures in place to allow the employee to continue working.
Before starting any kind of procedure, you are advised to check with a legal expert. FSB members can contact FSB Employment Protection for advice and guidance.
Disciplinary hearing invitation
Provide the employee with an invitation letter setting the following information:
- Details of the allegations
- Copies of any relevant documents and evidence to be relied upon
- Possible consequences (including dismissal if appropriate)
- The right to be accompanied (by a colleague or trade union representative)
- Names of attendees and witnesses
- Time and venue of hearing
- Request for copies of documents employee wishes to rely on and names of witnesses/companion they wish to attend
- Copy of your disciplinary policy
Disciplinary hearing
Where possible, the hearing should be held by someone other than the person who conducted the investigation, and who has no prior knowledge of the matter.
During the hearing, present your side of the case with any supporting evidence, before giving the employee the opportunity to do the same (with the support of their companion).
If the employee fails to attend the hearing, give them the opportunity to reschedule. If the non-attendance persists, give the employee the opportunity to engage in other ways (e.g. by Teams/Zoom, over the telephone or by providing written submissions) before making a decision based on the evidence available.
Outcome
If the allegations are upheld, you will need to consider a suitable sanction. This may include:
- First written warning – for first acts of misconduct with no active warnings on the employee’s disciplinary record;
- Final written warning – for employees with an outstanding active warning or for sufficiently serious misconduct;
- Dismissal – potentially suitable for misconduct during a probationary period or with an outstanding final written warning, or for instances of gross misconduct.
The outcome should be communicated to the employee in writing, confirming the nature of the misconduct, the sanction, how long any warnings will remain active, and the consequences of further misconduct.
Appeal
An employee should have the opportunity to appeal against any sanction. The appeal hearing should be held as soon as practical and, where possible, dealt with by someone not previously involved in the matter. If new matters are raised in the appeal, further investigation may be required.
What policies should be in place and what process should you follow?
The Acas report noted that small businesses with limited HR support often have disciplinary policies that are outdated, not tailored to the business and/or unfit for purpose. An up-to-date disciplinary procedure is essential for all employers and should be applied throughout the disciplinary process.
To avoid breaching your own policy, consider drafting it to ensure maximum flexibility. For example, the Acas Code of Practice states that hearings should be arranged, and outcomes communicated “without reasonable delay”; self-imposed hard deadlines in your policy could therefore be counterproductive.
Similarly, clauses allowing you to skip first or final warnings where reasonable and necessary will allow you to deal with the process with less rigidity. The policy should also set out a non-exhaustive list of examples of gross misconduct.
Actions to avoid
- Inflexibility – Be prepared to reschedule the hearing if the employee or companion is unavailable. Consider conducting the hearing at a neutral venue or via video call if necessary to secure the employee’s attendance. This is particularly important if the employee may suffer from a disability. In such circumstances, consider allowing the employee to be accompanied by a family member, which might be viewed as a reasonable adjustment to accommodate their disability.
- Closed-mindedness – Regardless of the alleged wrongdoing and the evidence against the employee, you should never treat the disciplinary process as a foregone conclusion. Give the employee an opportunity to explain their version of events and adjourn the outcome until after the hearing.
- Poor record-keeping – Ensure disciplinary invitations and outcomes are communicated in writing, with all documents and evidence securely retained. Notes should be taken at the meeting and kept available. This will be essential in the event of an appeal or employment tribunal claim.
The legal and commercial implications of getting it wrong
Financial and reputational risks from employment tribunal claims cannot be ignored. Defending a claim can be an expensive, time-consuming process. Should an employee succeed with a tribunal claim, an unreasonable failure to comply with the Acas Code could result in a 25% uplift in any damages awarded. All judgments are also publicly accessible, so even if claims are successfully defended, a company’s very involvement in a claim may lead to negative publicity.
Conducting a fair disciplinary process in accordance with your policy will minimise the risk of it being challenged and of subsequent claims being issued.