A Basic Guide for Employers
Dealing with disciplinary issues with your staff ranks pretty low in the chart of Great Things About Running a Business. Wise employers call in professional help quickly when something comes up with an employee that needs confronting and you feel that you are likely to take some action beyond a quiet chat. The consequences of getting it wrong are too great a risk. But even if you call in qualified HR & legal help you need to know how to handle a disciplinary situation properly from the start.
If you are facing the need to take formal disciplinary action, follow Tiger HR's step-by-step guide to protect yourself, make sure you are being fair to all concerned - and keep yourself and the business on the right side of the law. The key points that you should keep in mind when an issue arises are:
Deal with issues in a timely fashion, don't just wait and hope.
Follow sound disciplinary procedures which include a process for appeal.
These should be in line with the ACAS code of practice on disciplinary and grievance management.
Enable your employee's right to be accompanied to any disciplinary meetings.
Keep proper records of everything that happens and make sure you have a witness to any formal face-to-face interaction.
If a disciplinary situation develops in to a bigger dispute that goes to an employment tribunal - and you might be surprised how easily apparently minor issues can do that - any failure on the company's part to follow correct procedures can result in an increase of the compensation awarded to the employee but up to 25%
The average compensation award for unfair dismissal in 2017 was £16,453 (Source: www.gov.uk).
Assess the Situation
The first thing you need to do is figure out how serious the situation is. Broadly speaking disciplinary issues fall into two categories: performance and misconduct. These will require different approaches.
With performance issues, the goal needs to be to improve the employees contribution and put a stop to any negative behaviours such as bad timekeeping that are impacting their contribution to the team and the business. You must follow the disciplinary procedures which you should have laid out in your Employee's Handbook .
Usually performance issues can and should be dealt with informally in the first instance but if the problem persists and the behaviour doesn't improve you will need to move into the warnings process and make sure that you monitor the situation, record it properly and follow up.
Misconduct is an entirely different matter and can range from someone's behaviour (alleged or proven) in the course of a heated exchange, breaches of health and safety regulations, breaches of confidentiality (but be VERY aware of the protections for whistleblowers which have recently been strengthened) plus harassment and bullying all the way up to serious illegal acts.
Where employee misconduct is concerned the message is simple. Get professional advice. A qualified HR professional will know how to manage the situation, what routes are available to you and how they should be followed to protect you from ending up defending a claim at an Employment Tribunal. They will know when and if legal counsel is appropriate. This is a typical service for us at Tiger HR, sometimes but not always backed by our legal colleagues at Tiger Law. Please get in touch if you need help or advice.
In some circumstances, you may want to consider whether mental health is a factor, either as a cause of your employee's behaviour or because of the consequences of someone else's. Mental illness is a highly prevalent problem, quite possibly moreso than you might think. We encourage you to read our article on employee mental health. Understanding of these issues can sometimes suggest a different and more positive approach to what may at first seem to be a disciplinary matter.
Before initiating formal disciplinary action, you will want to make sure you are in possession of the full facts. That's easy enough if you yourself have witnessed the behaviour that has led to this point but if you haven't then you need to conduct an investigation. Again, qualified help is highly advisable, if not a must. Here are the key rules for investigating an incident:
- Anyone who is interviewed must sign an accurate transcript of anything that they say. You should inform them in advance that this will happen.
- Formally document everything that is said or written about the incident or the employee , including the employee's own words.
- Compile the evidence into a file and review it. For minor issues a verbal warning, given informally is sufficient but if the matter is more serious then you will need to arrange a formal disciplinary meeting.
- Keep the employee informed. You must let them know that they are being investigated.
The Disciplinary Meeting
Once it becomes clear that it is necessary to arrange a formal disciplinary meeting, this also must be done in the right way.
- The meeting should be held in a private area.
- Send the employee a formal notice that the meeting is taking place and requiring them to attend.
- As well as date, time and location, the meeting notification should also include full details of the matter in question and also a list of whoever else will attend.
- The employee has the right to bring someone along to accompany them - usually a colleague or union representative - and act as their witness and/or advisor. Let them know in the formal notice that this will be accommodated and ask them to inform you who it will be.
- You should have a qualified HR professional at the meeting to act as witness and ensure that the employee's rights are protected and procedures are correctly followed. If you do not have anyone in house, Tiger HR can provide an advisor in this role. We can also chair the meeting for you.
- If the matter involves illegal or criminal behaviour then you should also have a lawyer present. If a police investigation is underway relating to this matter then you may need to request guidance from the investigating officer too.
- Begin the meeting by reiterating all the details of the incident and ensuring that the employee is completely clear about why the disciplinary procedure is being undertaken.
- Refer to your Employee's Handbook and frame your objections to the employee's behaviour in terms of how it differs from the guidelines laid out there
- Give a clear explanation of the company's disciplinary procedures (which should also be laid out in the Employee's Handbook) so that the employee is fully aware of their rights and obligations.
- Inform the employee of what legal options the company has to respond to their infractions.
- You may make a decision there and then or wish to deliberate and take advice. It may even be necessary to make a further investigation because of what has come to light during the meeting,. Either way, make sure the employee is fully aware of how things will proceed from this point.
Keeping meticulous written records, where necessary signed by witnesses, of any and all interactions and evidence that occurs or comes to light during a disciplinary process is absolutely essential. These should include notes on any deliberations that take place after the meeting and what advice you took to arrive at a decision.
These written records should be held as highly confidential documents and should be stored under lock and key, with any digital equivalents subject to full security practices including encryption. (The latter is now a GDPR issue by the way - all your employee records should be highly secure. If you have not reviewed this in light of the new laws then you might like to have a word with my colleague Vanessa Challess)
Come to a Decision
After the meeting has taken place you will need to come to a decision.
- Consult your HR or Legal advisors unless the matter is very minor.
- Keep the decision and all notes and documents pertaining to it confidential. There is generally no need for the matter to be disclosed to anyone other than the employee and your advisors.
- Make sure that your response is legal, ethical and fair.
- Focus on helping the employee to improve. Requiring them to attend a relevant training course can be a positive move.
- Inform the employee with a formal disciplinary notice which includes any further action.
- If the matter has not been successfully concluded and further investigation needs to take place, appoint someone to undertake that and schedule a further meeting at a later date.
Assuming that the employee has not been dismissed, you will need to follow up to make sure that their employment progresses on a positive track following this incident.
Hold a follow-up meeting with the employee and give them clear guidance on what they need to change with examples of how they might behave differently in similar circumstances.
It's a good idea to include a program of follow-up review meetings as part of the action taken. These should be positive in intention - hopefully you will be able to improve the relationship between the individual and company as well as helping them to do better.
If, however, there is no improvement and the changes you want to see are not taking place then you will need to take things further. A regular series of performance review meetings with their immediate manager allows you to keep the employee informed and focused on potential consequences.