Run a small business, no HR staff, managers or fellow directors - how can you still effectively discipline staff ?

Any employer is under a duty to deal with disciplinary matters quickly, efficiently and effectively. However, this can be an issue for smaller business where there are perhaps less than ten employees. This can mean that there are no HR staff, no line managers and just the owner of the business dealing with all of the daily issues.

What does the law require in disciplinary issues?
The law requires that the employer carries out an effective investigation and establishes the facts before deciding how to proceed. If it is decided to proceed further then the next step is a disciplinary hearing. Normally, in larger organisations, the investigation and disciplinary hearing will be carried out by a different person. Further, if the matter proceeds to an appeal then then a third person is normally required.

How can a smaller employer overcome these obstacles?
There is nothing to prevent the owner of the business from carrying out all three roles. In considering any claim for unfair dismissal, an employment tribunal will always consider the size and resources of any organisation. Therefore the owner could carry out all three parts of the procedure so long as he did so fairly and consider all issues properly.
This is however far from ideal and any tribunal may ask what other options were considered. One option could be to train a member of staff to deal with the investigation staff of the proceedings and make a decision as to whether the matter should proceed further. This is far from ideal as it may lead to resentment amongst the staff and the business owner may not want to delegate such a role to a member of his staff.
A better option will be for the owner to deal with the investigation and disciplinary issue himself and then get a third party to consider the appeal. This could be for example the company accountant or a friend of the owner or his spouse. It will be imperative that, if this option is considered, that the person has full authority to make whatever decision they feel appropriate and that this is confirmed to them in writing.

Can the Company use an external person to oversee and carry out the process?
If the owner does not want to use friends and or family he can hire the services of an employment solicitor or HR consultant to oversee matters. Indeed, this person can be given authority to make any decision on behalf of the Company.

What do I need to do as a small employer if a disciplinary matter arises?

• Send the member of staff home for the day. Tell them they are not being suspended and are to come back to work the following day once you have considered the matter. 
• In this day formulate your plan for dealing with the matter. If you need legal advice then seek it.
• Ensure that you have disciplinary procedures and that these are up to date.
• Carry out an investigation and speak to whoever you need to so as to establish the facts.
• If necessary hold a disciplinary hearing. Tell the member of staff the issue in writing and confirm if dismissal is an issue. Remember they can be accompanied to this meeting.
• Hold the meeting and take notes. Make the decision and advise the employee of the outcome and the reasons in writing. If necessary advise of the right of appeal.
• If there is an appeal again they can be accompanied and notes should be taken. Confirm the outcome and the reasons in writing.

Summary
There is no reason why a smaller employer should not be able to discipline staff just as effectively as a larger employer. All that is needed is a plan of action and some common sense.

The views here are not meant as specific legal advice in relation to any particular staffing issue. If in doubt always seek legal advice.

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Can my Company have a drink and drugs testing policy

Any employer has a duty under Health and Safety Laws to ensure the health, safety and welfare of employees at work. If an employer allows an employee to work whilst under the influence of drink and/or drugs then they can face prosecution. Clearly, road traffic laws also prevent workers from being able to drive whilst under the influence of drink or drugs.

What can I do as an employer
The first thing any employer can do is to introduce a policy on drugs into their employment documentation. We would recommend that this is in the staff handbook and also in the contract of employment. The contract should set out that an employee is expected to comply with any reasonable request to undergo a test. A failure to comply can lead to a breach of contract, disciplinary proceedings and possibly dismissal.

What is this is not in our contract
The answer is simple. Get a policy drafted, amend the contracts and sit down with your staff and explain why you are taking the action that you are taking.

Where do we go next
Once the policy is introduced, staff need to be trained as to what to look out for as signs that someone may be under the influence of drugs. Clearly, being under the influence of alcohol is far easier to detect. Once suspicion is raised the employee needs to be challenged. Systems then have to be in place for a test to be provided and analysed. This is far from easy and expert help should be sought.

Can the employee be forced to undergo any test
An employee cannot be forced to undergo any test. They cannot be held down and a sample of their hair or blood etc taken. This would amount to an illegal assault upon the employee.

What can we do if the employee refuses
If the employee refuses as part of the investigation then they should be told that the investigation will  proceed and could lead to disciplinary action. Make them aware of the implications of refusal. The employer will have to form a view upon whether the employee was under the influence of anything and how this impacted upon their role.

There is a second issue that the employee could also be disciplined on the basis of a failure to follow a reasonable instruction during the course of their employment.

If any employee refuses to allow a test to take place can we dismiss
Potentially an employer can dismiss on the basis of a failure to follow reasonable instructions. Each case would however depend upon its own individual circumstances.

If an employee is under the influence of drink or drugs can we dismiss
Again the answer is potentially yes. This can be on the basis of gross misconduct if they are operating machinery or potentially a loss of trust and confidence in the employee. There is a lot of case law in this area. Each case will very much depend upon its own facts.

Summary

• Have a policy and discuss with staff
• Ensure that staff know what signs to look for
• Proceed with an investigation and disciplinary action
• Be aware that staff cannot be forced to take part 
• Be consistent in your approach

This blog represent our views on the issues discussed. It is not intended to be specific legal advice upon any particular set of facts. If in doubt please seek legal advice on any employment law issue. We can be contacted on 01582 439795 and will be happy to assist you with your staffing issues.

Our website is at www.chilternsolicitors.co.uk, which has a news page where you can be updated on employment and HR issues. You can also follow us on twitter @chilternsols.