Not knowing how to discipline staff can be a real issue for both smaller and larger employers. Even employers with dedicated HR staff often make very basic mistakes which can prove costly. So where do you need to start.
Disciplinary and grievance procedures
The first thing that any employer needs to be aware of is the need to have a procedure written down for dealing with such matters. It is also important to keep this up to date. We have seen many documents in recent years that have not been updated and do not comply with the latest ACAS codes.
Agree who will deal with matters
Ideally, the process can involve up to three people.The first person will carry out the investigation and establish so far as possible what has occurred. They will see the member of staff in question and will speak to other members of staff and other witnesses. This person will then decide how the matter will proceed.
Write to the person inviting them to a meeting
This does not have to be done but is good practice and will impress a tribunal if matters ever go that far. The letter should point out that if the person does not attend then the investigation may proceed without them.
Hold a meeting
There is no right to be accompanied at this first meeting. This is a fact finding exercise. However, notes should be taken and agreed if possible.
Decide what actions is necessary
The investigation decides if the matter proceeds any further and if so, on what basis. For example, if the company has a history of giving a final written warning for people who use their mobile phones whilst driving on company business they cannot suddenly dismiss a member of staff without good reason as he will be able to argue that the decision is unfair as others have been treated differently in very similar circumstances.
Write a 'step one' letter
The step one letter tells a person why they are being subjected to disciplinary proceedings. Do not be at all vague in this letter. It is important that an employee knows what the issue is and what evidence this is based upon so that they can prepare properly for the meeting. They are entitled to be accompanied by a work colleague or approved trade union official. Make sure that the letter gives sufficient notice. We would suggest no less than two working days. The letter should make it clear whether or not dismissal is an option.
Hold the disciplinary meeting
Ideally, the investigator will present the case for the employer and will produce minutes of the meeting and all of the witness statements. Witnesses can give evidence for both sides. The employee should be allowed to ask questions and sum up his or her case. Do not rush into any decision. If more information is required then obtain it and reconvene at a later date. Take minutes and get these agreed.
Give reasons for any decision in writing and outline what findings were made
The person making the decision should be prepared to make findings as to fact. For example if the misconduct is fighting in the workplace and the employee argues that he acted in self-defence, the person conducting the decision should be prepared to make a decision upon whether this explanation was accepted or not as the case may be. The findings will not usually be questioned by a tribunal so long as they are seen as reasonable and that the matter was given due consideration.
Be prepared to have an appeal
Any employer who is dismissed will normally appeal against the decision. After all, they have little to lose in doing so. The appeal should be heard by a more senior member of staff with authority to overturn the decision. We have been involved in a case whereby a junior manager was allowed to conduct the appeal and admitted in evidence that he knew he could not overturn his boss's decision to dismiss. Needless to say our client won his claim for unfair dismissal. The same guidance applies as to being accompanied and taking minutes.
What if you don't have three staff who can deal with such matters
Any employment tribunal will always consider the size and resources available to any employer when dealing with such matters. This means that, technically, if there is the business owner and a small number of employees then the owner may carry out the investigation, disciplinary hearing and appeal. However, they would be better advised to involve at least one other person in the process such as the company solicitor, accountant or another business owner.
Summary
Preparation and good procedures in place are key. If you fail to plan then you are planning to fail has never been truer than in disciplinary issues.
The above comments are the thoughts of the author and are not to be taken as being legal advice on any particular issue. if in doubt always seek legal advice.
At Chiltern Solicitors, we are happy to speak to you at any time on employment and staffing issues. Call us on 01582 439795 or email info@chilternsolicitors.co.uk. We have a regular HR and employment bulletin providing regular and helpful employment advice to all businesses. Drop us a line to subscribe to future issues.
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