Taking disciplinary action – what you need to know

When it comes to disciplinary action - size doesn’t matter!

In a recent tribunal case a small company employing just ten people was ordered to pay £10,000 compensation principally because they had failed to follow fair procedures when dismissing an employee.

Should you decide to take disciplinary action against an employee, the golden rule for all employers is that a fair procedure should always be followed.  The ACAS Code of Practice on Disciplinary and Grievance Procedures sets out what a fair disciplinary procedure should include and what warnings system should be followed.  The Code of Practice is not law.  Its importance lies in it being admissible as evidence before an Employment Tribunal and, in practice, tribunals expect its provisions to be closely followed by employers.  A failure to follow a procedure prescribed in the Code can make an otherwise fair dismissal unfair.  In addition, if either party has unreasonably failed to comply with any of the provisions of the Code, the tribunal has the discretion to adjust any award by up to 25% (depending on which party was at fault).  However, the tribunal will only make an increase or a reduction to any award if it considers it is just and equitable in all the circumstances to do so.

Disciplinary procedures should not be viewed primarily as a means of imposing sanctions.  Rather, they should be seen as a way of helping and encouraging improvement amongst employees whose conduct or performance is unsatisfactory.

Warnings procedure

The ACAS recommendation for a fair warnings procedure for disciplinary matters other than gross misconduct is one of three formal stages:

• Written warning
• Final written warning
• Dismissal

Where an employee has one or more years’ continuous service, failure to apply a fair warnings procedure could result in a finding of unfair dismissal by an Employment Tribunal.

Prior to implementing the formal stages, employers should first consider informal coaching or counselling.

The ACAS Code of Practice on Disciplinary and Grievance Procedures sets out the following general principles for dealing with misconduct or poor performance issues:

• Issues should be raised and dealt with promptly and you should not unreasonably delay meetings and decisions
• You should act consistently
• Any necessary investigations should be carried out to establish the facts
• Employees should be informed of the basis of the problem and have an opportunity to put their case in response before any decisions are made
• You should allow employees to be accompanied at any formal disciplinary hearing
• Employees should be allowed to appeal against any formal decision made

If you feel that your procedures need bringing up to date, On Target has arranged with its HR provider, The HR Dept, to carry out a free review of your documentation and processes and to let you have a complimentary model grievance and disciplinary policy based on the ACAS Guidelines.

In addition, The HR Dept are holding a seminar on Grievance and Disciplinary issues along with their regular employment law update on 16th October 2011 at Crystal Palace Football Club.

Contact Fintan on 0845 6349169 or email fintan@hrdept.co.uk for further information.