Determine Probable Level of Misconduct
Once the likely level of misconduct has been determined, the employer will be able to
determine what action to take next.
The nature of the misconduct will be obvious in some occasions, but as the disciplinary
policy will only include the type of conduct that could
fall into each category, it will be necessary for an employer to make a reasonable
judgement in many cases of suspected misconduct.
These will be determined according to the nature of the company, as some matters may be
more important in some workplaces, and a failure to
follow these requirements could be more of a disciplinary offence in these
circumstances.
Typical examples of misconduct could include:
- Minor (breaches of the rules or required standards, but not of an nature serious
enough to warrant dismissal or more formal action
initially)
-
Poor Time-keeping
-
Personal use of telephones, etc
-
Regular or unauthorised absences
-
Failure to act on a reasonable instruction
-
Poor performance
- Serious (breaches of the rules or required standards of a nature serious enough to
warrant dismissal in some instances)
-
Insubordination
-
Continued poor performance after appropriate support & training
-
Incapability due to drugs or alcohol
-
Serious misuse of computers of other equipment
-
Repeated incidents of minor misconduct
- Gross (breaches of the rules or required standards of a nature serious enough to
warrant dismissal in all instances)
-
Serious insubordination
-
Theft or Fraud
-
Violence or bullying
-
Serious breach of confidence
-
Serious neglect of health & safety procedures
Repeated offences of minor misconduct may also be treated as serious misconduct. However,
it's important to remember, this is misconduct for
which there have been charges brought against the employee - informal action (when formal
disciplinary charges are not applied) does not count,
and it is only repeated minor misconduct for which charges has been brought when repeated
minor misconduct should be treated as serious
misconduct.
For more advice & support, contact Employment Law Clinic, see the Disciplinary &
Grievance Pages of the site, or Return to the
Flowchart for further
stages.
Appears to be Minor Misconduct
In cases of minor misconduct, it will often be practical & sensible to deal with
this informally. This will not lead to any formal action
being taken against the employee, and unless there is further misconduct - when a more
formal approach should be considered - this issue should
not be held against the employee in the future... except of course if there is a repeat
offence, the employer should ensure formal action
follows.
Employers should be cautious not to use the option of an informal discussion instead of
more formal action simply to avoid being too heavy-handed. Formal disciplinary action for minor misconduct is not heavy-handed, and with the
appropriate action taken, should a further incident
arise the employer will now be ready to consider if this should be escalated to serious
misconduct.
Where formal charges are brought against the employee, it will be important that these are
still documented & the employee has a clear
knowledge of this. Despite the apparent contradiction, even the issuing of a verbal
warning should be reiterated in writing - this will simply
advise that a verbal warning has been issued, but will not increase the level or status of
the disciplinary penalty.
In cases where the employer considers formal action is appropriate, the employer should
commence the process by advising the employee of the
potential misconduct, and proceed with an appropriate investigation from there. In other
cases, the concerns should simply be addressed as part
of any good management process, with an informal discussion about the incident.
For more advice & support, contact Employment Law Clinic, see the Disciplinary &
Grievance Pages of the site, or Return to the
Flowchart for further
stages.
Address with Informal Discussion
In most cases of minor misconduct, the employee may have had no intention of
misconduct, and may not even have realised their actions were
misconduct.
Once the area of concern has been identified, it will often be possible to deal with this
through appropriate support - for performance or
attendance issues, either providing more training or making reasonable adjustments in the
workplace that could help improve attendance.
For more advice & support, contact Employment Law Clinic, see the Disciplinary &
Grievance Pages of the site, or Return to the
Flowchart for further
stages.
Arrange appropriate support
Whatever the outcome of the disciplinary process - whether summary dismissal (dismissal
on the spot), dismissal with notice (serve out the
notice period before the dismissal takes effect), a lesser disciplinary penalty, or no
disciplinary penalty - the employer has a responsibility
to their employee, and should ensure appropriate support is provided.
If you have decided to summarily dismiss, you should ensure the employee is able to gather
any personal belongings in a manner that causes the
least difficulties. This may involve a supportive approach as they return to their
workplace, but as this will often be in full view of
colleagues, it would often be better to arrange a quieter time to arrange this if
practical.
Employers should take care to ensure the employee is only removing their own property, but
you should try to act sensitively in observing any
packing the employee finds necessary, as you don't want to portray any more level of
distrust than is appropriate & necessary in the
circumstances.
Where dismissal is preceded by notice, the employer should ensure the employee is given
appropriate support & responsibilities through the
remaining term of their employment - the appointment is continuing, and work appropriate
to the contract & grade should continue to be
assigned, although this may be restricted where necessary & appropriate to the
disciplinary action.
Where a lesser penalty has been issued, if this involves for example a demotion, the
employer should help the employee settle into the new role,
and adapt to the lack of responsibility or increased management attention associated with
this position. In other cases, the employer should
remember that disciplinary action is aimed principally at improving performance, and
continue to support & promote the necessary improvement
in the future conduct of the employee.
If no disciplinary penalty is issued, the employer will still need to acknowledge the
difficulties & stress a disciplinary procedure will
have had on an employee. It is imperative that the employer provides the necessary support
for employees that have been considered for
disciplinary action, and ensure they understand the employer needs to investigate
suspected offences although this is not an assumption of guilt
on the employee by itself.
For more advice & support, contact Employment Law Clinic, see the Disciplinary &
Grievance Pages of the site, or Return to the
Flowchart for further
stages.
Appears to be Serious/Gross Misconduct
Cases that appear to be serious or gross misconduct must never be ignored. Equally, it
is important for employers not to jump to conclusions
or otherwise make assumptions about the perceived misconduct, let alone reach any
conclusions about the likely outcome of the case. At this
stage, there is a suspicion that the employee's conduct is inappropriate, but until the
matter has been properly looked into, employers should
assume nothing, and not determine the acutal, or even likely, outcome.
In the most serious circumstances, employers should consider suspension now, but this will
be rare, with a real & genuine risk to the
interests of the company suspected.
For more advice & support, contact Employment Law Clinic, see the Disciplinary &
Grievance Pages of the site, or Return to the
Flowchart for further
stages.
Advise Employee of Potential Miscondcut
As you have determined that there is possible or probable misconduct, it is only
appropriate you alert the employee to this. Natural justice
& good employment relations require you to give the employee notice of the issues you
suspect they are guilty of; any concerns that this
notice will allow an employee to prepare an excuse or otherwise hide the facts, or adjust
their conduct should not deter this.
As the notice of suspected disciplinary action is what the investigation will be based on,
and the employee's input will be to comment on this,
it is important that this is clear & unambiguous: rather than writing 'you are being
investigated for poor time-keeping', expand this to
provide examples that support this - you apparently arrived at 10:10 on Monday, 1
December, and 10:30 on Tuesday...
The letter should also make clear that this is alleged misconduct - for reasons that may
not yet be obvious, it is possible that there will be
perfectly reasonable explanations for the conduct. Therefore, you should make clear that
this is not a disciplinary charge, but an investigation
into a disciplinary matter; a charge will follow if necessary.
In all cases for which you have issued a disciplinary charge, you will then need to
conduct an investigation.
For more advice & support, contact Employment Law Clinic, see the Disciplinary &
Grievance Pages of the site, or Return to the
Flowchart for further
stages.
Consider Suspension
During the disciplinary process, employers will need to actively consider whether
suspension is appropriate. This decision does not need to be
taken at the start of the process, it can be reached at any stage that it seems
appropriate, if information comes to light that justifies the
same.
Suspension during a disciplinary process is not a disciplinary penalty in itself. It is an
option available, normally applied only for gross
misconduct, that temporarily removes the employee while disciplinary matters are
investigated & the facts determined. As this is not a
penalty, employers should normally continue to pay the employee for the time suspended -
which should be as brief as possible, and certainly no
longer than a week.
For more advice & support, contact Employment Law Clinic, see the Disciplinary &
Grievance Pages of the site, or Return to the
Flowchart for further
stages.
Formal Investigation
A disciplinary investigation does not always need to be exhaustive in its nature,
leaving no stone unturned; these should be reasonable, given
the nature of the alleged misconduct & all other circumstances.
A charge of minor misconduct will not require an investigation as intense as a charge of
gross misconduct, although the employer should still be
satisfied they have investigated sufficiently to hold a reasonable view of what happened.
A charge of gross misconduct will often require the most intense investigation - this
could justify dismissal, even as a first offence, so it's
important the employer has reasonable grounds to support this action - although even then,
in some instances this could be brief if the evidence
available is strong & the employee does not offer a convincing explanation for their
conduct.
It is normally preferable wherever possible to have the investigation conducted
independently - the manager that will make any decision based on
the findings of the investigation should, wherever possible, arrange for another manager
or someone external to gather the facts impartially, and
present these in a balanced manner: remember, the investigation is intended to gather
facts, not make or influence the final decisions.
Once an investigation has been concluded, the employer should decide what action to take
against the employee. This will either be to treat the
matter as minor misconduct that can be dealt with by an informal discussion; to proceed
with disciplinary charges against the employee (in these
cases, employers should again consider whether suspension is appropriate); or to conclude
that there is insufficient evidence to proceed.
For more advice & support, contact Employment Law Clinic, see the Disciplinary &
Grievance Pages of the site, or Return to the
Flowchart for further
stages.
Disciplinary Charges Issued
If an employer holds a reasonably based view that there is a disciplinary charge to
answer, the full details of this should be set-out in
writing to the employee. The letter should also invite the employee to a disciplinary
meeting, and fully explain their rights in regard to this.
For more advice & support, contact Employment Law Clinic, see the Disciplinary &
Grievance Pages of the site, or Return to the
Flowchart for further
stages.
Disciplinary Meeting
A disciplinary meeting should be arranged, wherever possible at a time mutually
convenient to all parties. In a small number of cases, the
employee will claim all dates/times offered are inconvenient to them, or any companion. In
these instances, the employee should suggest a
suitable time within a reasonable time-scale (five days is typically fine although this
may vary for different circumstances), but where
agreement cannot be reached, the employer should set a final date, and advise the employee
that the meeting will proceed without them if
necessary.
It will be important, even if cases for which the employee does not attend, to proceed
with a disciplinary hearing. This will typically involve a
minuted record that the managers were present, and considered the investigation & any
other information available to them, and also decided
whether to proceed on the basis of that, or give the employee a further opportunity to
attend a meeting (providing the manager has been flexible
& given the employee a reasonable opportunity to attend a meeting, giving a further
opportunity will not normally be necessary).
For more advice & support, contact Employment Law Clinic, see the Disciplinary &
Grievance Pages of the site, or Return to the
Flowchart for further
stages.
Decision
The employer should reach their decision only on the facts of the case, as far as
reasonably established. It is important not to allow
prejudices or other suspicions to influence the decision-making.
Employers should remember always to act consistently: there will be unique elements to any
case, but in cases with predominantly the same issues,
any actions or penalty should be similar.
The employer should consider the current record of the employee in making any decision: a
disciplinary warning will normally be exhausted after a
period of time, so unless current these should not be considered in any decision.
In cases of gross misconduct, the decision may be to dismiss for a first offence. In other
cases, dismissal will be exceptional, although it may
be appropriate in some circumstances for serious misconduct.
The decision should be reached as promptly as possible after the disciplinary hearing
(while taking sufficient time to reflect on anything said
at the hearing), and should be advised in writing to the employee.
For more advice & support, contact Employment Law Clinic, see the Disciplinary &
Grievance Pages of the site, or Return to the
Flowchart for further
stages.
Appeal
Disciplinary procedures should always include an opportunity for an appeal, wherever
possible to a more senior person than that who took the
initial decision; in the smallest companies, this may not be possible, in which case a
suitably qualified independent person may be brought in to
hear this. Where the same manager needs to hear the appeal, they should act as impartially
as possible from their earlier decision.
The appeals process is not an opportunity for the employee to present new evidence, but
for the employer to consider whether the original process
was fair & reasonable in all the circumstances.
The appeal should be set out in writing, and should give clear details of what is being
appealed - the findings, the disciplinary penalty, or
both.
Where the findings are being appealed, the main focus of the appeal should be to consider
the original disciplinary process, and whether this was
reasonable in all the circumstances. If the employer is satisfied this was, the appeal can
be dismissed; if there is a reasonable argument that
the investigation should have covered more, consideration should be given to upholding the
appeal, and arranging a further investigation.
Where the disciplinary penalty is being appealed, the main focus of attention should be
whether the original decision was reasonably made &
was appropriate in all the circumstances. If this is not to be found so, the original
decision should be substituted; otherwise the appeal may be
dismissed - although the manager may still reduce the initial penalty if they consider it
appropriate in the circumstances of the cases. This
will normally be the final outcome in the case, so it is important
to ensure you are comfortable with the decision being
reached.
The decision from the appeal should be a reasonable one in all the circumstances (the
confidence of the management responsible for earlier
actions should not undermined, although bringing in a wider perspective & the
knowledge of a more senior manager can assist the other manager
in their judgement for future cases; overturning a decision on appeal does not mean the
original decision was necessarily wrong in the
circumstances). This should be reached as soon as possible & notified to the employee
in writing.
In cases where a dismissal has been overturned, the employer should consider appropriate
support in getting the employee back into their
employment with minimum fuss or unnecessary attention.
For more advice & support, contact Employment Law Clinic, see the Disciplinary &
Grievance Pages of the site, or Return to the
Flowchart for further
stages.
Final Outcome
The employee will have no further appeal internally at this stage, so before this final
decision is reached, the employer should satisfy
themselves that all procedures have been properly & fully followed; the disciplinary
penalty is appropriate in the circumstances; and they
would be confident in defending this at an employment tribunal in case the employee elect
to take a claim.
The final outcome should never be pre-determined, but will be a decision reached when all
the facts have been considered in a balanced manner.
After the appeal, it could be the case that the original decision is upheld, the decision
is set aside, or the decision is substituted with an
alternative decision.
The decision needs to be reached in a reasonable time-scale, but should never be rushed
out. Instead, as soon as the appeal has been received,
the person due to make the final decision should set-aside sufficient time to consider
& absorb all the facts before reaching a decision.
As soon as a decision is reached, this should be put in writing and provided to the
employee. Given the difficulties the employee has gone
through in this whole process, the employer should be supportive & considerate when
delivering this final decision: rather than leave an
envelope on the employee's desk, give notice to the employee of when the decision is
likely to be available, and book a meeting to deliver the
letter in person. While not legally obligatory, these little steps will at least help to
demonstrate that the employer has been considerate in
their processes, not crassly reaching decisions & then casually letting the employee
know these.
Regardless of the outcome, the
employer should continue to be supportive of the employee.
For more advice & support, contact Employment Law Clinic, see the Disciplinary &
Grievance Pages of the site, or Return to the
Flowchart for further
stages.
No Further Action
In some instances, your suspicions of misconduct will prove to be unfounded - either
the matter of concern was not actually as first
perceived, or there were acceptable explanations for this that mean formal disciplinary
penalties are not appropriate.
Employers should notify the employee as soon as possible when a conclusion has been
reached that no further action is necessary - the employee
will often be concerned about the threat of disciplinary action, so as soon as it is known
that no further action will be required, this should
be communicated to the employee - ideally, you should speak to the employee to advise them
of the conclusion but always confirm this in writing.
It will still be important to keep full records of the matter, noting that nothing further
occurred as well as the reasons for this decision.
Employment tribunals will always look for & expect consistency from employers - you
can't treat one employee differently to another for the
same offence and with the same circumstances. Having records to support your decision not
to pursue action in any given instance will assist
employers in defending their actions, should another employee bring a claim to an
employment tribunal - the employer will be able to explain the
reasons why the cases were not equal, and why action was justified in one but not another
case.
For more advice & support, contact Employment Law Clinic, see the Disciplinary &
Grievance Pages of the site, or Return to the
Flowchart for further
stages.
