Dealing with a discipline

In many cases of misconduct or unsatisfactory performance, the appropriate course of action in the
first instance is to address the issue with the employee informally. Often a quiet word is all that is required. Sometimes though matters are too serious to be dealt with informally and in such circumstances, it is appropriate to commence the company’s disciplinary procedure.

What does informal action involve?

When you take informal action, you are consciously deciding that you will not invoke the company’s
formal disciplinary procedure but will instead have a conversation with the employee to correct the problems at an early stage. Take the following steps:

• Explain what the problem is.

• Try to establish if there is an underlying reason for the shortfall in standards, and;

• Set out the required remedial action and explain that, if there is not an improvement in the
future, you may have to take more formal action,

• Agree a date to review the problem, particularly if performance related.

How to conduct informal meeting

Choose somewhere private to have the discussion and ensure it is a two-way conversation. Explain what the problem is and point to the relevant part of the company’s rules or procedure if appropriate. Read it together, if that helps.

Give the employee an opportunity to comment on the issues raised and provide any explanation they may have. Ask open questions to help you explore why the problem exists.

Remember, the purpose of these discussions is to be constructive, if you are not happy with employee’s explanation then set out the required improvement and identify or explore how this is to be achieved. If the issue is performance related, it may be appropriate to discuss additional training or assistance.

Always keep a note of your discussion – when and where and what was said, together with any explanations offered. Keep it brief but appropriate to the matter under discussion. For example, a note in a diary may suffice: ‘Smith – 20 mins late – missed bus, third time this month’. DO NOT COMPLETE AN IMPROVEMENT NOTICE.

You can inform the employee that if the required standard is not met, the next step is likely to be formal disciplinary action.

Make sure that the discussion does not turn into a more formal disciplinary meeting. A formal procedure will trigger certain rights including the right to be accompanied. If it becomes clear during the informal discussion that matters are more serious than they at first appeared, it may be appropriate to close the meeting and confirm to the employee that the company will be pursuing the matter through formal disciplinary proceedings.

If formal action is required following an informal investigation or discussion, you should consider the nature of the allegation and decide whether you need to suspend the employee. Suspension is where an employee continues to be employed, but does not have to attend work or do any work. It should never be automatic.

Most disciplinary procedures will not require suspension. An employee will usually be able to continue doing their normal role while the matter is investigated.

Suspension should usually only be considered if there is a serious allegation of misconduct and:

• Working relationships have severely broken down.

• The employee could tamper with evidence, influence witnesses and/or sway the investigation.

• There is a risk to other employees, property or customers.

• The employee is the subject of criminal proceedings which may affect whether they can do their job.

Alternatives to a suspension as part of a disciplinary procedure

An employer considering suspending an employee should think carefully and consider all other options. Even where there are reasons to consider suspension, in most situations a temporary adjustment to the employee’s working arrangements can remove the need to suspend.

Alternatives to suspension could include the employee temporarily:

• Being moved to a different area of the workplace.

• Working from home.

• Changing their working hours.

• Being placed on restricted duties.

• Working under supervision.

• Being transferred to a different role within the organisation (the role should be of a similar status to their normal role, and with the same terms and conditions of employment).

Only if all other options are not practical, suspension may become necessary.

Additional considerations when suspending as part of a disciplinary procedure

There should be no assumption of guilt associated with a suspension and suspension must not be used as a disciplinary sanction. A suspension can have a damaging effect on the employee and their reputation.

Therefore, if a suspension is necessary, the suspension and the reason for it should be kept confidential, where possible.

How should an employee be suspended and how long should a suspension last?

If suspension is necessary, an employee should be met with and provided with the full reasons for the suspension and be issued with a Suspension Letter, before they leave site. Inform the employee that whilst this is a neutral act, the employee is asked to not communicate with other staff while they are suspended.

Appoint an independent manager to carry out the investigation and inform the employee who this manager is as they will be their point of contact throughout the initial process. Ensure the manager keeps the employee informed throughout the investigation, especially if it is taking some time to complete.

A period of suspension should be kept as brief as possible and regularly reviewed to ensure it is still necessary. A suspended employee will usually still be expected to be contactable during normal working hours and available to attend any meetings and/or interviews that are necessary concerning the investigation. If the employee wants to go on holiday during their suspension, they must still make a request to take annual leave.

An employee should be kept regularly updated about their suspension, the ongoing reasons for it, and how much longer it is likely to last.

Employees will receive their full pay and benefits during a period of suspension.

Ending a suspension

Once a suspension comes to an end, the employee should return to work immediately, if applicable. An employee may sometimes feel aggrieved about the suspension and/or worried about returning to work. Therefore, an employer should arrange a return-to-work meeting on the employee’s first day back, or as early as possible. It can provide an opportunity to discuss and resolve any concerns.

ALWAYS inform the HR Team if you have suspended an employee.

 

The investigation of an allegation of misconduct is arguably the most critical part of the disciplinary
process. Errors and inadequacies at this stage can lead to an employee being dismissed without having proper opportunity to refute the accusation and present an adequate defence.

The appeal courts have made it quite clear that a fair and reasonable process is essential. Tribunal cases, whether won or lost, are expensive not just in monetary terms but also in terms of employment relations.

An investigation can sometimes be a lengthy process and it is vitally important that it is carried out
as swiftly as possible. Therefore, consider the following:

• Have I got sufficient time available to carry out an investigation properly – it is best to say no if
you have not.

• Will I need to prioritise or delegate other work?

• When is the investigation to be completed by? It is important to conduct an investigation as
soon as possible after the incident when details are still fresh in everybody’s minds.

As the investigating officer you will need to confirm what the precise terms of reference or aims of the investigation are. For example, ‘To investigate the allegation of sexual harassment made by A against B’.

• Some might need to be broad to start with as the course of the investigation may be uncertain.

• If you are unsure, request a briefing with the manager authorising the investigation.

• The alleged misconduct needs to be precisely stated. Potentially there may be more than one
allegation.

• Is the investigation to be just preliminary? i.e. to establish whether there is a need for a full
investigation.

• When you are satisfied that you understand the allegation, it is advisable to plan how you will carry out the investigation.

Planning

1. Liaise with line managers – explain that you are conducting an investigation (keep the details
confidential) and will need to talk to some of their employees.

2. Timetable interviews – aim for a logical order; try to minimise disruption to work routines and
be mindful to accommodate people’s personal commitments.

3. Gather together any relevant documentation including copies of instructions, procedures,
personal records etc.

4. Use a Witness Statement form to record all statements.

Investigation Interviews

To ensure that you carry out a fair investigation, please adhere to the following:

1. Only ask questions that are relevant to the investigation.

2. ALWAYS ensure that the employee in question gives their statement before any other witnesses
– it will give you a feel for what you need to investigate.

3. Try to obtain specific answers – dates, times, places and faces. Would a diagram of the incident help to gain a better understanding of events?

4. Respect anonymity from a reluctant witness, but be wary of it. Liaise with the HR Team for further advice and support.

5. Traps should not be set but it is wise to look for corroboration.

6. Interviewees should be asked to comment on the facts, not on some theoretical position.

7. Do not treat interviewees unfairly, ask leading questions, or harass or intimidate them.

8. Interviewees may be accompanied but not by a person who may be a witness. The companion
should not answer questions on the persons behalf although they can confer with the individual.

9. Employees have a duty to co-operate but also have the right to remain silent or refuse to be
Interviewed.

10. Do not put words into people’s mouths.

11. Remind interviewees of the importance of accuracy.

12. Conduct all interviews in a business-like and courteous manner.

13. See guide ‘Hints and Tips’ for assistance.

Interview Notes

Should:
• Be an accurate record of the interview and be as comprehensive as possible.

• Record any refusal to answer questions or otherwise take part.

• Be signed by both the interviewer and interviewee – record any refusal.

• Give the date and place of interview.

• Name those present.

• Give the start and finish times of the interview and details of any breaks or adjournments.

Investigation Report

The report should be a professional document, presented in a file and should contain:

• Details of the circumstances which led to the investigations.

• The nature of alleged misconduct/irregularity investigated.

• A list of all the information and evidence obtained.

• Copies of all witness statements including any which were retracted or amended.

• The original interview notes and records.

• Copies of relevant documents.

• Details of any weaknesses identified in procedures, instructions, training etc.

• An evaluation of the evidence both for and against and any conflicts or uncertainties.

• Use an Investigation Report Form for your report.

When you have completed your investigation, meet with the manager who authorised the investigation to decide whether to invoke the disciplinary procedure.

If a disciplinary hearing is required, appoint a chairman not connected with the case and hand over investigation report.

If there is no requirement for a hearing, communicate the decision to the employee and any other affected individual.

If you have been appointed as the chairperson for a disciplinary hearing, follow the guidelines for a fair hearing.

Preparation is equally as important as ensuring the policy and procedures are followed appropriately. Good preparation will help the process run as smoothly and efficiently as possible. It will also help to avoid any potential issues the individual may raise as a result of poor evidence, or having to overturn the decision because the procedure is flawed.

Be aware of your responsibilities, the individual’s responsibilities and the responsibilities of their
representative should they wish to have one attend.

Disciplinary hearings are NOT a comfortable experience for either party, preparation is key. Use the Preparing for a Disciplinary Hearing Checklist to assist you.

Gathering Information

Ensure that you are familiar with the disciplinary procedure, e.g. the disciplinary penalties, the limit of your authority, the employee’s rights to be accompanied and appeal.

• The investigation should have already been carried out by another manager and you will have a report of the findings.
• Make sure that you have all the information you need to carry out the disciplinary hearing. If not, go back to the investigating officer and ask them to investigate further.
• Check the witness statements, they should be factual, signed and dated by the employee, in
writing and remain confidential, if appropriate.
• Check if the employee has any current disciplinary warnings for a similar matter.
• Consider the outcome of similar cases that have happened in the past, in order to ensure consistency.

When you are satisfied that you have enough information to proceed, invite the employee to a disciplinary hearing.

A letter should be prepared by the chairperson if the likely outcome is a verbal or written warning, use Invite to Disciplinary Hearing. If the charge is more serious and likely to warrant a final written warning or dismissal contact the HR Team and they will prepare the letter for you.

The letter should state the time, date, location, the nature of allegations and the right to be accompanied. Provide copies of evidence that you intend to rely on, such as witness statements, prior to the meeting. If the employee is disabled or English is not their first language, check whether any special arrangements will be needed.

Prepare for the Hearing

Invite all the relevant parties. Ensure that you have another manager, or a member of the HR Team, in attendance to take notes of the hearing and to act as your witness. If the note taker wishes to use a Dictaphone to record the hearing, they will need the employee’s agreement.
Arrange a suitable venue for the hearing, i.e. a quiet place free from interruptions, and allow sufficient time in your diary.

Ensure that the meeting is a time and place reasonable and suitable to both parties. Be prepared to agree a postponement to the hearing should individuals not be available. Five days is a reasonable timeframe.

Prepare the script for the hearing using the Disciplinary Script.

The Hearing

The aim of the hearing is to establish the facts by allowing the employee to state their case and to answer the allegations that have been made against them. The structure should be based on the following:

i – Introduction

Introduce yourself and your colleague. Explain what your roles will be in relation to the hearing.

Remind the employee that they are entitled to a witness at the meeting. If they confirm that they have opted not to have a witness then record this in the minutes.

If a witness is present, confirm their role. They can ask questions on the employee’s behalf and participate fully. However, they are not entitled to answer a question put to the employee.

Explain that the purpose of the meeting is to consider whether disciplinary action should be taken in accordance with the company’s disciplinary procedure.

ii – Outline the complaint

Explain to the employee what the complaint is and briefly outline the evidence gathered.

Ask the employee if they have any explanation for their misconduct, behaviour or their failure to improve, whichever is appropriate.

Allow the employee the opportunity to state their case and ask any questions that they have. You need to listen carefully. Clarify information where you feel there is ambiguity.

The process should be two-way allowing each party to have their say and ask any questions they have.

Seek clarification of the key issues.

Give the employee and/or companion the opportunity to reiterate any aspects that they wish to emphasise.

Don’t be afraid during the meeting to check your understanding of what is being said, i.e., can I just check what you said there, are you saying that ……… or can I just make sure that we make a note of this correctly, did you say ………

Take comprehensive notes if not using a Dictaphone.

Avoid Arguments!

Do not make personal comments. The hearing is to address issues regarding their behaviour or performance, not their personality.

Keep to the subject matter and avoid the hearing being side-tracked on to inappropriate or irrelevant areas.

Adjournment

An adjournment can be taken by either party during the hearing and for various reasons, such as:

• You feel unable to answer a question and need to obtain appropriate information or evidence.
• You feel that your frustration or anger may be about to brim over and you need to cool down.
• The employee becomes violent or abusive.
• The employee or a witness becomes uncontrollably emotional.

When you feel that you have all the information and the employee feels that they have stated their case then you need to adjourn to review the material gathered from the hearing.

Inform the employee and the witness of the estimated length of time you intend to take for the adjournment to reach your decision. This should be as soon as possible and reconvening for the decision will usually be on the same day of the hearing.

Remember! Always adjourn before making your final decision, in cases where dismissal is likely to be the outcome, adjourn overnight so that you can gather your thoughts and check any anomalies.

Decision

Once you have considered all the information and have reached a decision, then reconvene and explain to the employee the rationale behind your decision.

Inform the employee of their right of appeal and that it needs to be made in writing to you within the next five days clearly stating the reasons of appeal. Remind the employee that it is not sufficient just to say they do not agree with the decision.

Tell the employee that the decision will be followed up in writing, unless during the course of your
investigation, you discover further evidence. If so, you must declare the details to the employee and await a response.

Final actions

Complete the Record of Decision Form and forward to the HR Team together with the
disciplinary notes/evidence/witness statements. So that you are not in breach of the GDPR, you must not keep copies of any employee data at site. Only record relevant facts.

The decision will be recorded on the employee personnel file and HR will confirm the decision in
writing to the employee, if applicable.

If you have agreed to review the employee, make a note of review dates and monitor as agreed.

Management is responsible for maintaining discipline and control to ensure that the Company operates profitably, efficiently and within the law. All employees must make themselves aware of the following rules in relation to conduct and performance.

In the normal conduct of business, advice to and correction of an employee by management is a normal feature and is not regarded as disciplinary action. Incompetence and unsuitability will be addressed through the disciplinary procedure if counselling fails to achieve the required improvement.

This procedure is designed to avoid misunderstanding and to ensure fair treatment of all employees.

Matters to which procedure stages will normally apply include the following as examples, this list is not exhaustive and a common-sense approach will be applied:

• Excessive absence
• Disregard of Company regulations and procedures
• Unauthorised absence
• Failure to follow absence notification procedure
• Excessive lateness
• Misuse of, or damage to, property belonging to the Company, fellow employees, customers, visitors, etc.
• Bad timekeeping or abuse of breaks
• Disruption of working harmony
• Using Company equipment for unauthorised purposes, inc. misuse or excessive personal use of Company computers (e.g. e-mail or internet), mobile phones, etc.
• Inattention to health and safety matters
• Failure to obey Road Traffic Regulations whilst on Company business or parking/traffic regulations on Company premises
• Poor performance and/or failure to apply reasonable care and attention to work, substandard quality work or concealing defective work or scrap
• Loitering, time wasting
• Failure to report for normal or overtime working without notifying Supervisor
• Committing any act likely to bring the Company into disrepute. This includes information or comments made via any private and/or Company Social Media Networks

Summary dismissal

Matters to which the disciplinary procedure stages may NOT apply and which may lead to summary dismissal are relating to conduct (gross misconduct) or work performance, and include the following as examples. This list is not exhaustive and a common-sense approach will be applied:

• Sale, possession, use, or attempting to work under the influence of alcohol and/or illegal drugs whilst on Company premises/Company business
• Physical assault, fighting, indecent exposure, abusive language, or abusive behaviour on Company premises or at a Company sponsored activity
• Removing Company materials or equipment without permission
• Abuse of Sickness Certification Procedure
• Breach of the Equality and/or Dignity at Work Policy
• Falsification of records, inc. clocking for other employees
• Smoking in prohibited areas or at prohibited times
• Insubordination or refusal to carry out a reasonable instruction
• Providing misleading information or withholding relevant information, e.g. lying for employment purposes
• Divulging confidential information about the Company and its products or new developments to persons not employed by the Company
• Theft or deliberate damage to property belonging to the Company, fellow employees, customers, visitors, etc
• Gambling on Company premises
• Endangering the health and safety of self and/or others whilst operating a Company vehicle
• Excessive driving violations
• Leaving work without permission
• Serious breaches of Health & Safety at Work policies and procedures
• Gross negligence that leads to damage, loss, or injury
• Serious misuse of company computer systems or social media networks

The above are examples only and Management reserve the right to treat any breach of discipline according to its individual set of circumstances.

In order that disciplinary matters (including poor performance) are dealt with fairly and effectively, the following stages of procedure will apply:

Stage One

If there is cause for complaint the Supervisor concerned will discuss the matter with the employee, and if disciplinary action is needed, a VERBAL warning will be issued which will remain in force for 6 months.

Stage Two

If within six months there is still cause for complaint and further disciplinary action is necessary, a WRITTEN warning will be given and recorded which will remain in force for 12 months.

Stage Three

If within 12 months there is still cause for complaint and further disciplinary action is necessary, or the matter is sufficiently serious, a FINAL WRITTEN warning will be given which will remain in force for 12 months.

Stage Four

This is the final stage in the procedure and if there is still cause for complaint, or if the matter is considered so serious, further disciplinary action will be taken, which is likely to result in:
i) Termination of employment, with or without notice, as appropriate, or
ii) Some other action short of dismissal, inc. demotion, suspension without pay, transfer.

The Company reserves the right to enter the procedure at stage three or four for serious breaches of conduct.

 

An employee has the right to appeal a disciplinary decision within 5 days of the original decision. They must put their grounds of appeal in writing to the original disciplinary hearing chairman. It is not acceptable to submit an appeal simply on the grounds that the employee does not agree with the decision so make sure that the reasons are clearly stated before you embark on the appeals process.

Decisions may be appealed on a number of grounds;

• Employee challenges the disciplinary chairman’s decision
• Challenges the severity of the penalty
• New evidence may have come to light
• Disciplinary procedure was not followed

When you are satisfied that you have sufficient information about the grounds for appeal, you should pass it to a senior manager who has not previously been involved in the disciplinary procedure. This would normally be your line manager.

If you are the appeal chairman you should arrange to hear the appeal promptly and inform the employee in writing of the meeting arrangements. Use Invite to Appeal Meeting.

The role of the appeal chairman is to essentially review the case based on the employee’s grounds of appeal. You should follow the procedure set out below.

Appeals Procedure

1. Begin by introducing the employee to those present and explain why they are there. If the employee is not accompanied remind them that they have the right to be.
2. Explain the purpose of the hearing, how it will be conducted and what powers you as a chairman have. You will be checking that:

• Company procedure has been followed.
• Any new evidence presented is properly considered.
• Original decision justified.
• Punishment fits crime.
• Employment record which will include any current disciplinary record is taken into account.
• Length of service.

3. Explain that the possible outcomes are that you could:

• Revoke the decision.
• Impose a lesser penalty.
• Impose a higher penalty.
• Confirm the original decision.

4. Explain that you have had a chance to familiarise yourself with the case and you will be asking some questions.
5. Explain that either party may wish to take an adjournment to gather thoughts.
6. Inform the employee that following the appeal hearing you will make a decision as promptly as you can.

REMEMBER!

• The format of the meeting is similar to a disciplinary hearing.
• Preparation is important, familiarise yourself with the case.
• If there are any questions as to whether the original hearing was carried out properly, then the appeal hearing can put the earlier mistakes right.
• The employee has the right to be accompanied.
• If you are unsure of the employee’s grounds of appeal clarify this with the employee.
• Once all the relevant issues have been thoroughly explored and the meeting is naturally exhausted, summarise the facts and call an adjournment to make your decision.

The chairman should take time out to consider the outcome.

The employee should be informed of the results of the appeal and the reasons for the decision as soon as possible. You can either do this face to face or in writing and following this you must send all the relevant documentation, along with  Appeal Hearing Record of Decision, to the HR Team who will confirm the outcome to the employee in writing.

Please note, that if during the course of your investigation, you discover further evidence, you must declare the details to the employee and await a response.

The employee should be informed that this is the final stage of the disciplinary procedure and your decision is final.