20 March 2017
Disciplinary proceedings can be a minefield and getting the process wrong can be costly and damaging to your business. Listed below are the ten most common disciplinary mistakes made by employers.
1. Not setting out the nature of the allegations clearly. When inviting an employee to a disciplinary hearing, issue a letter to the employee setting out the exact allegations against him/her; attach all evidence that you intend to rely upon and advise the employee of the right to be accompanied at the hearing. The employee should be allowed sufficient time to prepare for the hearing.
2. Using an incorrect procedure. The ACAS Code of Practice on Disciplinary and Grievance Procedures and the Company’s own disciplinary procedures should be followed. If a proper procedure is not followed, the disciplinary action taken may be considered to be unfair.
3. Failing to conduct a proper investigation. A reasonable and thorough investigation needs to be followed and all relevant evidence gathered before a decision is made as to whether formal action will be taken. The employer should take the time to establish the facts of the case. It is advisable to invite the employee to attend an investigation meeting. Employees involved in the investigation should be asked not to discuss the allegations.
4. Failing to suspend an employee facing serious allegations of misconduct. If you consider that the allegations against the employee are potential gross misconduct, you should consider suspending the employee on full pay pending a full investigation. If you do not suspend the employee and the employee is later dismissed for gross misconduct, it may be difficult to argue that the employee committed a fundamental breach of contract justifying dismissal if you allowed the employee to continue working in the same role or even in another capacity.
5. Not giving the employee the relevant evidence against him/her to be relied upon at the disciplinary hearing. All evidence that the employer intends to rely upon at the disciplinary hearing should be given to the employee in advance of the hearing. The employee should be given sufficient time to consider the evidence and prepare a defence. The evidence to be relied upon should be attached to the invitation to attend the disciplinary hearing letter.
6. Not allowing the employee to be accompanied at a hearing. An employee is entitled to be accompanied by a work colleague, a trade union representative or an accredited trade union official. If the representative cannot attend the hearing, the employee should offer an alternative time within 5 days so that they can attend. The employee should be advised of the right of accompaniment in the invitation to attend the disciplinary hearing letter.
7. Failing to warn the employee of the possible consequences of the disciplinary action. The employee should be warned of the likely sanction and there should be no surprises at the end of the proceedings. This should be stated clearly in the invitation to attend the disciplinary hearing letter.
8. Having the same person deal with the whole disciplinary process. The person conducting the investigation process, disciplinary hearing and appeal hearing should be different or there is a possibility that the dismissal could be unfair. In an ideal scenario, the investigation, disciplinary hearing and appeal hearing should be conducted by different people. In a small business, it may be hard to find someone unconnected so whoever carries out the investigation must do so with an open mind.
9. Failing to provide an appeal. The employee must be provided with an opportunity to appeal the disciplinary sanction. The employee should be advised of the right of appeal in the disciplinary outcome letter. The appeal hearing should be unbiased and the outcome should not be a foregone conclusion.
10. Not keeping a full and accurate record of the disciplinary proceedings. A full written record should be made of the whole process. If notes are not taken, it leaves the details of the meetings more open to challenge. All information gathered in relation to the employee should be stored in their personnel file.
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