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Disciplinary procedure – understand your options

By Victoria Brown

By Victoria Brown

In the latest HR update, Victoria outlines the process for employers to address employee conduct and performance.

A disciplinary procedure is used by an employer to address an employee’s conduct or performance.  I am going to spend the next couple of weeks just breaking down the process for you, as there is often confusion, and mistakes can be very costly to an Employer.

What options do you have?

I have dealt with hundreds to thousands of disciplinary matters within my time in HR….I am showing my age here!  The Manager/Employer can often be quite distressed when they call for advice about whatever the employee has been up to…or not up to in the case of performance.  The first step I take is to understand exactly what has happened and what process we should be following;

1. unacceptable or improper behaviour (misconduct) or

2. performance (capability)

Can this be dealt with informally?

It is important to establish if this can be dealt with informally first.  It can often be the quickest and easiest solution.  I regularly find that a Line Manager’s failure to ‘nip a problem in the bud’ at the onset, manifests to a bigger problem and normally is when my team and I have to get involved.  Prevention is always better than cure. 

If the issue is still at an informal stage, then the employer should try solving the issue with their employee by:

  • privately talking with them and any other employees involved
  • listening to their point of view
  • agreeing improvements to be made
  • setting up a training or development plan, if it’s a performance issue

I would always advise that although the above is ‘informal’ it should still be documented.  As you may need to refer to this audit trail at a later date if the conduct or performance does not improve.

However, some employee issues are beyond an informal discussion.  Establishing the difference is key and may need some training for your line managers if you do not have day to day control over this.

What is considered misconduct?

In accordance with ACAS ‘Misconduct is when an employee’s inappropriate behaviour or action breaks workplace rules’.

Some misconduct examples include:

  • being AWOL (absent without leave)
  • bullying
  • harassment
  • refusing to do work (‘insubordination’)

You may have your own examples, that I would advise are referred to in your Disciplinary policy and procedure to ensure you are open and transparent at all times.

What is considered Gross Misconduct?

If an act is very serious or has very serious effects then it may be considered as an act of ‘gross misconduct’.

Examples of gross misconduct in the workplace could include:

  • fraud
  • physical violence
  • serious lack of care to their duties or other people (‘gross negligence’)
  • serious insubordination, for example refusing to take lawful and reasonable orders from a supervisor

Again, you may have different examples of gross misconduct in your policy.

Employment Tribunal Risk Warning alert

Please, please, please don’t just dismiss someone on the spot.  The amount of employment tribunal claims I have witnessed that have lost their case because they simply did not follow their own disciplinary process is eye watering.  Try and remain calm in this situation and carry out an investigation and follow the full disciplinary procedure.  You will have the option to dismiss without notice or payment in lieu of notice if you decide to dismiss following investigation and subsequent disciplinary hearing.

What are capability issues?

Capability of performance is about an employee’s ability to do the job.  Quite often an Employer has a separate procedure for dealing with capability and performance issues.  It is important that you are familiar with your own procedures or have support from a HR professional that can ensure you follow your own procedure.  This may seem like a silly comment to make, but again I have so much experience of employers getting this wrong, as they fail to follow their own Company procedure.

Next week I will talk you through the steps you must take within a Disciplinary process….. the suspense must be killing you. 😊

If you are struggling with a disciplinary or capability matter and need some advice and training for your line managers please do not hesitate to contact the HPC team

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