In our latest HR clinic, Robyn Clark (aka JacksonR) and Susi O’Brien (HR Help advisor) explored the issues of Managing Conduct and the Disciplinary Process.

Here is a summary of the questions we received, and the answers given.

What is the difference between a verbal and a written warning? I assumed the former didn’t get written down, but our policy says it should be, so I don’t get it!

We get this question quite often, so don’t worry! Over the years, verbal warnings have been rebranded as informal warnings which I think helps to give more clarity. It’s a slap-on-the-wrist type thing; it isn’t disclosable on a reference and, interestingly, there is also no right of appeal. They also normally last for a shorter period than a formal warning – 6 months instead of 12. The point of writing it down is to have a record that it was given should the behaviour be repeated, or any other misconduct that occurs while the warning is live.

Written warnings are given normally in the form of a letter following a disciplinary hearing. They’re a formal sanction so the employee has the right of appeal,  and they would be disclosable on a reference request.

If someone has passed their probation but committed gross misconduct shortly afterwards, do I still have to follow my disciplinary process?

It’s something I would recommend. I know we often say that employees with less than two years’ service don’t have permanent employee rights, and yes, this does make it technically easier to dismiss people. But you need to be 100% confident that there’s no chance the employee will hit you back with a discrimination claim. It’s still generally best to follow the ACAS Code of Practice with regard to disciplinaries even where the employee has short service.

And don’t forget, your disciplinary process doesn’t have to be onerous. If you’re fairly confident it’s gross misconduct, I would assume you have strong evidence to back that up. So, investigate – get the employee to explain their side of it, and then arrange the outcome meeting . You may find that when faced with the process, the employee resigns before you have to get any further! This is a useful resource Disciplinary – Notification of appeal hearing letter [PLUS]

Do I have to interview the employee during the investigation?

It’s most definitely advisable! The ACAS code does state that an employee “might be interviewed”, and there have been examples where people have been fairly dismissed without being interviewed, but this would normally only apply to very clear-cut examples of misconduct. Good practice would be to interview, especially where things aren’t so straightforward. It could also reduce the likelihood of the employee claiming that a fair process wasn’t followed, if they’ve had a chance to have their say.

You can use these resources to communicate the outcomes:

Performance management – Outcome dismissal [PLUS]

Disciplinary – Notification of dismissal with notice [PLUS]

 For lateness, how many warnings should you give before dismissing the staff member?

Whatever your policy says, you will do! But make sure it’s reasonable. Obviously just once wouldn’t make you look like a supportive employer!

My policy starts in 3s – first three warnings lead to a verbal warning, another three warnings lead to a written warning.   Then a bit stricter, another two lead to possible dismissal. That would merit a disciplinary hearing, though, to determine the final outcome. Ensure there’s a timescale attached to them as well – similar to your sickness policy (i.e., rolling 12 months etc.)

I have a bank receptionist who provides occasional cover. They seriously breached patient confidentiality last week. Do I have to organise a disciplinary?

It would depend on whether the receptionist was working under a bank contract of employment or was working on more of a self-employed basis. But if they’re working for you under a contract of employment, they therefore have the same rights as other employed staff, regardless of their status as ‘bank’ – especially if they have more than two years’ service as they will still have permanent employee rights! If you’re not sure, you may want to take further advice before proceeding, but the safest thing to do is to follow your disciplinary procedure. This letter can be used for written warnings Disciplinary – Notification of disciplinary outcome – Written warning [PLUS].

What do you have to say when you suspend someone? Also, if an employee is suspended but has a planned holiday, does the holiday count as part of the suspension time?

When you meet with the person to tell them you’re suspending them, you need to tell them the allegation that’s been made against them firstly. You should explain that suspension is a without-prejudice act – it does not mean you think they’re guilty; you’re going to investigate the allegation and they will have their opportunity to respond to it. Suspension allows you to complete your investigation as quickly and comprehensively as possible. Confirm confidentiality – they should not make contact with staff whilst suspended unless they’re given permission to do so. They should not access work systems or premises whilst suspended unless given permission to do so. Ideally, confirm how long your investigation process will take so they are aware. And offer them support – it’s stressful being suspended so they may need an Occupational Health referral or if you have an EAP, offer them that too. Nominate a point of contact for the investigation so they know who to speak to if they have any concerns or updates to give.

Suspension is on full pay so if they have planned leave, there’s no right to have it back and they should take it as planned. But you should then not expect them to participate in the investigation or any hearing during that time either. If they request to cancel it, you should consider the request but you don’t have to grant it. If they get signed off sick, however, then you would have to credit it back.

Disciplinary – Notification of dismissal with notice [PLUS]

We have an employee who never signs into the H&S app at work, is constantly late and never does what they’re asked. Attendance is poor but they’re leaving in a month. Is it worth the disciplinary now or just leave it?

That’s a really subjective question and only you can really answer it.

Do you have the energy for it? It will take a lot of effort and energy. What would it achieve? They’re already going. I assure you’ve already done the reference for the new employer? Would it result in the employee going off sick for the rest of the notice period? Would you be better off putting them on gardening leave for the remainder of their notice?

It’s completely up to you – but my view would be that unless the problem is something that could pose a threat to patient or staff safety, it wouldn’t be worth the effort. 

I’m writing a letter to follow a disciplinary hearing in which the employee got a final written warning. What do I need to include?

Oooh, good question! I love a bit of process!

You want to confirm you’re writing following the hearing and include who was there, when and where it was held. Confirm the allegation that was being reviewed and do a brief summary of the major points put across (or you can enclose a copy of your report and just refer to it). State the outcome and ideally the justification for the outcome that was reached. As a formal sanction was given, you also need to give details on the right to appeal and the process for this, and ideally include a copy of your appeals policy. As it’s a final written warning, you should also explain that further misconduct could lead to their dismissal.

Practice Index provides templates for letters both before and after disciplinary hearings and examples of these have been posted in the chat such as this one Disciplinary – Invitation to hearing (gross misconduct) letter [PLUS]

An employee wants to bring a family member to the disciplinary hearing. Do I have to let them?

Employees do have a statutory right to be accompanied to a disciplinary hearing, but this right extends only to a trade union representative or a colleague. You could allow, as a reasonable adjustment, someone like a support worker to attend if the employee has one. Friends and family are never a good idea in my opinion as this can make the meeting more emotionally charged and it can be more difficult to get the friend or relative to behave in accordance with what their role is meant to be – which is purely to support the employee, remind them of something they may want to say or take notes. Supporters are not supposed to answer questions on behalf of the employee, or speak for them. And this is something friends and family often struggle with.

Disciplinary – Invitation to hearing (misconduct) letter [PLUS]

I generally agree with Robyn here but there can be exceptions. Sometimes having support from a family member might be a reasonable adjustment for disability, for example. Or it might help someone for whom English is a second language. Or you might just feel that it’s worth the gamble in the circumstances? For example, way back about ten years ago or so, I supported at the hearing where the employee had been argumentative and confrontational throughout his previous investigation meeting. We really weren’t looking forward to the actual hearing. Prior to it, the employee asked if he could bring his dad along because that would help him deal with the stress. We thought about it, decided we had nothing to lose, and said yes. The dad stayed silent throughout the whole thing but the body language and eye contact between him and the employee indicated that he was providing a lot of emotional reassurance. The employee behaved perfectly throughout the hearing. Allowing the dad along in this particular situation definitely felt like the right thing to have done.

An employee went off sick with stress after finding out about the investigation starting. What do I do?

This is quite a common response unfortunately to people being informed that a disciplinary process is pending. When this happens, your sickness management procedure  should take over. You should meet the staff member to explain that the disciplinary procedure is not going to go away, so the best thing to do is to get it over with. Your staff member may be willing to participate whilst they’re off sick, so if you have their consent to do so, you can continue the investigation process and arrange their interview.

You can continue to investigate and interview other staff, witnesses, etc. while they’re off, but obviously it’s difficult to finalise the process without interviewing the accused. So, it’s about being proactive in managing the absence. Should the employee refuse to participate, refer them to Occupational Health under your sickness policy, giving the background that there’s an investigation pending. Ask Occupational Health to confirm whether the employee is able to participate in the investigation. It’s unlikely they’ll say no. And if they say yes, then explain to the employee that it needs to move ahead.

If they continue to refuse to participate and there’s no medical reason why they can’t, then you go ahead with the information you’ve managed to obtain – and if that means they haven’t put their side across then that’s their choice, and the outcome will be decided on what you do have. So, it’s in their best interests to play ball.

I have a receptionist who has a diagnosis of ADHD. There was an incident last week which resulted in a patient complaint and it was all because of her making an error in record-keeping. She admits the error and apologises, but says that she gets ‘ADHD brain’ sometimes and that’s what caused this. Do I discipline as normal or do I have to send her to Occupational Health?

Hmmm, okay… Let’s ask the audience a question – does this feel like a disciplinary to you? Put your virtual hand up if you think you would discipline this employee for this.

I don’t think I would. People make mistakes! Yes, it has resulted in a complaint but that doesn’t automatically mean disciplinary. You’ve spoken to the staff member, they’ve admitted it and not tried to hide it, and they’ve apologised. Isn’t that enough? If you were to proceed with a disciplinary, you would most definitely need to refer to Occupational Health as they’ve cited a potential disability as the reason for the error. Has the employee been to Occupational Health before given they’ve told you of their diagnosis – have you made any adjustments to accommodate their ADHD?

There are many things to consider but unless this was a repeated issue, adjustments had been put in place and the staff member appeared to be wilfully negligent, I wouldn’t view this as a disciplinary. In your complaint response, apologise for the error, explain that the staff member has also apologised and the error has been rectified. I’d then refer to Occupational Health, if you haven’t done so already, as a supportive measure to ensure that the practice is supporting the staff member to work effectively in light of their diagnosis.

Disciplinary – Notification of disciplinary investigation meeting letter [PLUS]

Disciplinary and grievance investigation report template [PLUS]

An employee under investigation has submitted a grievance saying they’ve been bullied and racially harassed. What do I do?

I assume this grievance is in relation to the fact that they’re under investigation? If so, again this happens quite a lot. Quite often, an employee’s first life of defence is attack – you’re coming for me so I’m going to retaliate by accusing you (or someone else).

The first thing to do is to confirm to the employee that you take these accusations very seriously and you will investigate them. Check your own disciplinary (and grievance) policy   to see if either says anything specific about grievances that arise during investigations. You would normally put your disciplinary investigation on hold while you investigate the grievance. In my experience, this doesn’t take long because there’s often no evidence to back up the claim. So, meet the employee and hear what they have to say. If you conclude their grievance is not upheld, you can continue the disciplinary. If the grievance is upheld, you need to determine whether this impacts on your disciplinary process.

Disciplinary policy and procedure [PLUS]

Grievance policy and procedure [PLUS]

About to arrange a disciplinary hearing and the employee has requested copies of all emails about him written by managers in advance. Do we have to give them to him?

Yes, as this falls under a subject access request. But the same provisions around data apply, so any third-party information would need to be redacted. This is also why I recommend being very mindful of what you put in writing – as it can be requested. Where possible, have face-to-face or telephone conversations! And remember that you have one month to complete the subject access request. You may well have completed your disciplinary process prior to that time limit being up. However, of course, if the employee has indicated that there are particular emails they need sight of as part of their defence, then it would be advisable to ensure these are provided prior to the hearing. If necessary, postpone the hearing whilst this relevant information is gathered.

Can you take into account previous warnings if they have expired? We have a staff member pending disciplinary and it’s not their first time, but the warning expired a few months before this most recent incident.

This is a tricky one. Case law suggests that a spent warning can still potentially be taken into account, but ultimately it will be a question as to whether the employee has acted reasonably or not, and potentially how much time has passed between the most recent instance of misconduct and the expiry of the warning. There are other options available to you if this is a pattern of behaviour, however – for example, you could issue another warning and specify that there’s an unlimited duration on the warning for this specific type of behaviour, on account of it having been repeated just after a previous warning or warnings have expired. Again, though, you would need to be shown to be acting reasonably so would need evidence to back this up.

A clinical member of staff has just resigned with immediate effect whilst under investigation for gross misconduct. Do I have to complete the investigation or can we just let it go?

Now this is always a quandary for managers. Going through a disciplinary process isn’t easy or fun or nice. So, it can be really tempting to just accept the resignation and shelve it. You might also feel that you’re safer in terms of the potential for a tribunal claim if the employee resigns.

There are two things here, though, that would make me want to see it through. “Clinical staff member” and “gross misconduct”. These two things together, if proven, would merit a referral to the professional body. Professionally registered staff have a code of conduct to abide by, and a breach of that code means referral. A referral is much easier for the professional body to handle if they’ve got all the information, including the outcome. There are implications for future employers as well – a dismissal goes on a reference. We don’t want to be allowing staff who commit these examples to move from practice to practice if there are concerns about their conduct. A lot of staff will resign in the hope that it will go away and not follow them – but that isn’t always the right thing to do morally. I personally would complete the investigation.

Just completed an investigation into a breach of patient confidentiality, but it’s come down to one person’s word against the other. I think the employee probably did it, but I’ve got no proof. Should we just leave it?

As I said before, it’s all about the balance of probabilities. But one word against another with no hard evidence is basically hearsay, and I wouldn’t recommend taking any formal action based on hearsay.

That doesn’t leave you powerless, however – these things are always an opportunity to reinforce what your expectation is. So, you could conclude your investigation to the employee by saying you aren’t taking any formal action but, going forward, you would not expect to see this behaviour repeated and you’ll be monitoring things!

Reasonable belief is key – not a criminal court. So, question your gut instinct. It’ll often just be based on suspicion or dislike of one person over the other, but in some situations, it might be based on one person’s record of untruthfulness previously. Or it might be based on what is or isn’t a logical and believable story.

For example, some years ago I supported in a disciplinary which looked at why a bottle of gin had appeared on an employee’s work receipts after a trip to the supermarket for work supplies. Two people had been on that supermarket trip. One said the bottle was purchased deliberately and drunk between them later. The other said that she hadn’t purchased it, but had accidentally knocked the bottle off the shelf with her bag – it happened to be her favourite gin brand – and it smashed so the shop staff made her pay for it, but she didn’t have her own card on her, so she used her work one and forgot to report it later.

It was one person’s word against the other, but the hearing manager’s gut instinct informed them as to which was the more likely story. This was reasonable belief in the circumstances. You can guess for yourself which person’s story they believed!

 We’ve discovered that a very experienced nurse has likely recorded at least one patient’s test results incorrectly – and possibly fraudulently – on file, which almost led to a triage doctor making a big mistake when assessing the patient later on. The nurse is currently on holiday. Should we ring them to let them know about the investigation or wait until they return and immediately suspend them whilst we investigate?

Holiday is time away from work and so you shouldn’t contact them whilst on leave – that’s a sure-fire way of receiving a grievance in response! “You ruined my holiday!”

Also, don’t immediately assume they’ll need to be suspended – you don’t know yet whether this is a conduct or a performance issue. Recording a test result incorrectly could be due to a number of factors. I would meet the nurse on their return and bring it to their attention and see what they have to say – if their response gives you grounds to think this could be a capability  issue, then you could put them on restricted duties whilst you investigate. If you think it’s fraudulent potentially and you don’t feel you can trust them to continue working whilst you investigate, then you can suspend. Remember that suspension is without prejudice and should only really be used where you feel there’s a risk to safety or that the employee’s continued presence at work could impede the investigation process.

Performance management – Capability procedure [PLUS]

If an employee is suspended from work due to an incident you believe should be gross misconduct, but your policy doesn’t specify what constitutes gross misconduct, can you still treat it as such?

Best practice is to have a list of examples in your policy  that your organisation considers to be gross misconduct, with a handy little line at the bottom that says “this list is not exhaustive”.

You’ll never get a 100% comprehensive list of what gross misconduct instances are, though, as these will vary across different organisations and industries. However, the ACAS website has its own list which you can refer to, and in the case of registered professionals, you can often rely on the professional body to give you an idea of what they feel is gross misconduct from the viewpoint of their organisation.

The main thing to be aware of is to not pre-judge the outcome, so if you don’t have a list of what constitutes gross misconduct for your organisation, then you need to think more in terms of what is a proportionate and reasonable response. If you get to the point of dismissal, you’ll need to clarify that you consider what happened to amount to gross misconduct and explain why that is.

With regard to suspension  – you shouldn’t immediately assume that a staff member should be suspended if what they’re alleged to have done could be viewed as gross misconduct. Suspension is meant to be an act without prejudice, and the main reasons for suspension should be around:

• Whether it’s safe for them to be at work (for example, if they have potentially committed an act of gross negligence, is it safe for them to continue in their role unsupervised whilst awaiting the outcome of the investigation?)
• Whether their being at work would potentially hinder the investigation process (for example, would they have the opportunity to tamper with evidence or intimidate witnesses?)
• Whether there’s a risk of further misconduct being carried out while they’re still at work (for example, if they were being investigated for theft or fraud, is it possible they’d commit more of these acts whilst still at work?)

Remember, you don’t always have to suspend in these scenarios either. You could temporarily redeploy the staff member to a different role, restrict their access to certain systems or places, or have them change their working pattern to prevent them mixing with certain colleagues.

Code of personal conduct [PLUS]

Disciplinary – Notification of suspension from work [PLUS]

What if the original disciplinary process started after one year, but has been going on so long (grievances, appeals, etc.) that they have now been employed by us for over two years? Can you still go straight to dismissal?

You just have to persevere – and don’t assume that dismissal will be the outcome. You should still have followed a full investigation and hearing process before determining the sanction. If the outcome of the hearing is that dismissal for gross misconduct is appropriate, then yes, you can. If not, then a formal warning may be another option.

If you’re wondering whether the employee could bring an unfair dismissal claim, then this could usually apply to any dismissal that took place at least two years from their start date. The key date is the date of dismissal – not the date when you first started investigating. So, in this case, if you dismissed, yes, the employee could bring a claim, and you must have carried out a sufficiently robust process to defend that.

If dismissing someone in my role as PM, who does the employee appeal to if they so choose – me or someone else?

It should always be someone with equal to or higher authority than you – so, if you’re the practice manager, they should appeal to one of the partners. Your Disciplinary Policy should set out who the correct person will be, and it should also be mentioned in each employee’s contract of employment.

What would you suggest as measures for someone with ADHD, please?

This is too complicated to answer without any other information or context – ADHD affects different people in different ways. My advice would be to refer them to Occupational Health and ask specific questions around reasonable adjustments which the OH clinician can talk through with the employee.

Someone has sent an Instant Message about a member of staff, but inadvertently sent this to the individual they were talking about, which resulted in an upset member of staff who then cited bullying. We then had to do a full investigation and spoke to the individual who sent the message and added a file note to her record. We sent grievance and dignity at work policy to the individual who received the message originally.

[It was clarified on the call that the message was work-appropriate and not abusive, etc.]

It seems to me that you’ve done everything you need to – if the person on the receiving end wanted to lodge a formal grievance, then they can do so and you can investigate that, but I doubt the outcome would be any different if you’ve already dealt with it.

Advised by the police that a clinical member will imminently be arrested – told we cannot inform staff member – help!

This is really difficult, I know, but you cannot do anything that could potentially impede a criminal investigation or an arrest. From an employment perspective, people are innocent until found guilty, so you’ll need to wait to find out what the next steps will be before determining whether you need to take any action.

If the police have told you that you need to suspend a member of staff from their job but have advised that you cannot give the employee a reason for this, it’s a very difficult situation because normally not providing a reason for suspension would be considered unfair by a tribunal. Take good HR or legal advice and offer as much support to the staff member as you can. Specific mental health support may be needed. Sometimes these situations result in the police investigation being dropped and the employee returning to work without ever knowing what the original allegation was, and that can be very hard indeed on an individual.

When you stated ‘don’t make policies contractual’, do you mean referencing the specific policy terms or citing policy in contract?

My contracts all state that staff are required to read and adhere to practice policies and procedures. The individual policies then say that they are not contractual and can be amended at any time – this allows you to make changes without having to go through formal consultation (assuming, of course, that you’re not changing things that do form part of the contract, such as sick pay or leave entitlement).

How would you handle a staff member who we may flag if something has gone wrong and why, so we can look if a process needs to be changed, or identify more training etc, however will then be quick to then raise if WE have not done something? He often gets frustrated at how long things take to get resolved (I understand this, to be fair), but there are only so many hours in the day and we do try to update staff as often as we can; however, his reaction is always that of defence. What would be the best way to address things?

There’s not much you can do – every organisation has difficult characters who are quick to point the finger when it’s not pointing at them. All you can do is be receptive and open to their feedback and then keep them updated on progress if things aren’t going as quickly as they’d hoped – be transparent on the reasons why. I’d maybe also have an informal chat about how his reactions can come across. Empathise that you understand his frustrations but you’re doing the best you can, and this is the approach you take with him when you have to address issues directly. It’s all about the quid pro quo!

Other resources

• Conducting an Investigation Policy [PLUS]
• Notification of dismissal – Gross misconduct [PLUS]
• Notification of no further action following investigation [PLUS]
• HR Masterclass – Module 3 (Disciplinaries)
• Practice Index Training – HR Bundle

Future HR Clinics:

Recruitment, Appraisals and Workforce Planning – 20th February 2024 at 12.30 pm
Bullying and Harassment – Tuesday 19th March at 12.30pm
Handling Long-Term Sickness – Tuesday 23rd April at 12.30pm