I’ve been an HR professional for 18 years and supporting managers with disciplinary situations is part of the bread and butter of my work. The most common advice I give in such situations is ‘think about process’. But what do I mean by that, and why is it so important?

Misconduct

To start with, I should clarify that in this blog I’m specifically talking about misconduct situations, such as when an employee knowingly breaks a rule, or does something that is obviously off limits at work like stealing, bullying, or lying.

It’s good practice to keep situations like this separate from issues like general performance standards or sickness absence, and so those latter subjects aren’t discussed here, though some of the same principles apply in reality.

Why disciplinary processes matter

The majority of employees (I’ll go onto exceptions later) have legal protection against unfair dismissal. This means that if you were to dismiss them for misconduct, they could make an employment tribunal claim against you – and they might win. There are some situations where even if you issued a formal warning but didn’t dismiss, an employee might make a claim for constructive dismissal, though this is much harder for them to succeed in.

In unfair or constructive dismissal cases, a tribunal will consider the overall ‘reasonableness’ of the employer’s decisions and behaviour. Judges know better than to try and second-guess the exact pressures inside individual workplaces and so tend to give managers fairly wide latitude in deciding what types of misconduct should or shouldn’t deserve dismissal. But they place a strong emphasis on how managers issue warnings and dismissals.

Employers are expected to treat different employees in a consistent and fair manner, so that means you a) need to have a standard process for carrying out disciplinaries, and b) you need to follow it. It’s very hypocritical when an employer dismisses someone for failing to follow organisational policies, and fails to follow its own disciplinary policy when carrying out that dismissal!

There is also what’s known as the Acas Code of Practice on Disciplinary and Grievance Procedures. This is a very helpful official guide, setting out clear steps which employers should take when issuing formal warnings or dismissing people. But it has a sting in its tail – if an employer doesn’t follow it and can’t come up with a very good reason for not doing so, then the employee’s unfair dismissal claim is much more likely to succeed, and their compensation payout can be increased by as much as 25%.

Sometimes dismissed or ‘warned’ employees will make a tribunal claim for discrimination rather than, or as well as, unfair dismissal. The Equality Act 2010 (which governs discrimination claims) doesn’t set any specific requirements about disciplinary processes. However, if a fair process hasn’t been followed, in practice that makes a finding of discrimination much more likely.

Finally, there’s a clear business case for managers to hold disciplinaries in a fair and consistent manner. Firing someone then recruiting and training their replacement makes no sense if a bit of investigation would have uncovered that they’d done nothing wrong in the first place. And when trying to retain the loyalty of existing good employees, it’s important that they trust you as an employer. If any of us saw our colleagues being treated unfairly, we’d wonder ‘could that be me next?’ and start hunting the job boards just in case.

What fair disciplinary processes look like

Given what I’ve just written, it’s only right that I give a brief summary of what a fair and proper disciplinary process for misconduct looks like.

It starts with understanding the allegation itself. Make sure you know what it is the employee is being accused of exactly, and why this is a problem. You’d be amazed at the number of times I’ve come across disciplinary hearings where the matters being discussed are vague and open to misinterpretation. It’s a disaster waiting to happen process-wise.

Once you have a clear allegation, you need to investigate it. Depending on the situation, this might be a long-winded, slightly Poirot-esque experience of interviewing multiple witnesses (including the accused employee) and trawling through written evidence, or it might just be gathering up a few simple emails. Ideally, it’s best that the person who carries out this investigation is different to the person who chairs any later hearing.

When the investigation is complete, you’ll know if there’s still a potential case to answer, and as such, if a formal disciplinary hearing should be arranged. If the answer to this is yes, then you must send a written invitation to the employee including all relevant evidence gathered from the investigation, and explaining their right to representation on the day.

At the disciplinary hearing, you go through the results of the investigation and allow the employee to give their side of the story. A decision is made as to the level of any formal sanction being issued. This is communicated to the employee in writing, along with an explanation of how they can appeal the decision if wanted. The employee is once again entitled to representation during that appeal process.

Exceptions

Yes, I said there were exceptions to the above process requirements! (But not many, so don’t get too excited. )

The most common exception is employees with less than two years’ service who don’t normally have a right to claim unfair dismissal at tribunal. It’s therefore quite common for employers’ disciplinary policies to include shortened processes for these individuals – especially if they’re still in their probationary period. However, be aware that, as mentioned previously, sometimes such procedures are important for the defence of discrimination claims (which require no minimum length of service), and there are also some types of dismissal (such as for whistleblowing at work) which are automatically unfair no matter what the employee’s length of service.

The other key exception is people who aren’t employees. This might include self-employed locum GPs or workers who occasionally cover reception on a casual rather than employed basis. This is a complex area of law which I won’t cover here, but if you have any doubt as to whether someone is an employee or not, it’s best to seek professional legal or HR advice.

Sources of information and support

The most important source of information about disciplinary procedures at your practice is your practice’s own disciplinary policy. I recommend having a fresh read of this every time you’re about to commence a new disciplinary process, just in case there’s anything that’s slipped your mind since the last time.

The Acas website not only includes the aforementioned Code of Practice, but also includes more detailed guidance for employers when handling disciplinary situations.

If you’re a PLUS subscriber, the Practice Index website provides template disciplinary policies for all parts of the UK which are fully up to date, based on best practice and Acas guidance. It also includes template letters which relate to all stages of a disciplinary process so you don’t even have to write them up yourself! PLUS subscribers also have access to an email helpline for HR issues which includes managing disciplinary situations.

Finally, managers and partners with access to the Practice Index HUB can undertake the HR Masterclass – Module 3 (Disciplinaries) there, which is highly recommended for your CPD.

Susi O’Brien