How to manage the disciplinary process

Employers must follow a fair disciplinary process when investigating and addressing employee misconduct and deciding on the appropriate action. Notwithstanding the nature of the disciplinary offence, the process itself is a legal requirement and liable to future challenge, so it is important to get it right. The onus is very much on the employer and if they are not confident in their own knowledge or processes, they should be seeking professional advice.

Typically, the disciplinary process is used for employees displaying inappropriate behaviour at work or unauthorised absence (misconduct). It is also used for employees who are unable to perform their duties up to the required standards (capability).

Employers should try to resolve the issue with the employee informally before resorting to the formal disciplinary procedure. If the issue is performance at work, there may be a separate performance and capability procedure to follow.

Steph Marsh, Head of Employment, explores how employers can best manage the disciplinary process.

Following a fair procedure

To ensure the process remains fair, employers should follow a written procedure. If you do not have a written disciplinary policy, you should follow the Acas Code of Practice as a minimum.

Begin with an investigation to gather the facts before making the decision to start the formal disciplinary process. Once employers have decided that there are grounds for a disciplinary, the employee should be informed in writing. This letter needs to include what the employee is being accused of, the potential consequences and an invitation to a hearing, also informing them of their right to be accompanied.

Subject to the employee’s contract, they can be suspended during the course of the disciplinary process. 

The hearing is a chance to discuss concerns from both sides and consider any evidence put forward by the employee. Upon completion of the hearing, the employer needs to decide on the action that will be taken. Employers should consider all of the information discussed and gathered during the hearing.

Once the final decision has been made, they must send this in writing to the employee. The employee has to be given the opportunity to appeal if they are not happy with the outcome or believe a fair procedure wasn’t followed. No matter the outcome, employers have to keep a record of all disciplinary cases. If the employer imposes a sanction or warning, this should be documented and reviewed periodically, ensuring that it is removed once expired.

Managing the disciplinary process

Regardless of the situation, employers have a duty to act reasonably, follow fair procedures and carry out investigations as part of the disciplinary process. Doing this correctly and fairly not only protects the employee but also the employer.

That is why in all instances, employers should make sure they understand the procedures to follow and have clear, well-written policies and procedures in place.

Coodes’ Employment team offer local companies an Employment Retainer Package. Among other things, this includes an ad-hoc employment advice as and when required, template letters and advice and assistance with absence and performance management. Additionally, the team are available should you have any employment-related questions.

Coodes Solicitors, one of the South West’s longest established and leading law firms in Cornwall and Devon, supports businesses to keep up to date with the most recent changes in Employment Law. If you need some friendly advice, call Steph Marsh on 01579324017 or email steph.marsh@coodes.co.uk.