Sadly, sometimes employees misbehave, and it might be necessary to take action against them for their behaviour. Employers must have a disciplinary policy in place, as this is a legal requirement. However, simply following your policy, may not be enough to stop the exposure of your business to the risk of an Employment Tribunal claim.
Your overall procedure needs to be fair and your ultimate decision should be justifiable.
You should consider whether formal action is required in the face of misconduct. The foreword to the ACAS Code encourages informal resolution, where appropriate, and emphasises that a ‘quiet word’ may be all that is required to resolve an issue.
Informal action tends to be the most appropriate when an employee has committed an act of misconduct for the first time in relation to a matter that is not (initially at least) particularly serious, such as an isolated example of lateness.
Alerting the employee to the fact their lateness has been noticed and is unacceptable may be a better way of dealing with this type of issue as opposed to launching straight into an investigation and formal disciplinary proceedings. It will certainly be shorter and less time consuming for a first time, small offence to deal with it informally rather than undertaking a full disciplinary process.
If the matter is more serious, then a formal process should be instigated. Planning the full process as much as possible at the start of the matter is ideal and allows for additional lines of investigations be considered. Broadly speaking a thorough investigation will involve:
Frequently Asked Questions
Does it matter if the employee has had previous offences?
The company disciplinary policy will usually contain the applicable sanctions available under the policy for misconduct. These usually include as a minimum a first written warning, final written warning and dismissal (with or without notice).
Most policies have a period of time (usually between 6 -12 months) that a sanction will stay on the employee’s disciplinary record for, after which they will ‘fall away’ and be removed from the employee’s records.
Should I suspend the employee who has been allegedly misbehaving?
Suspension is a neutral act but should only be used in cases where it is appropriate. The major factors that would suggest suspension would be appropriate are as follows:
Do employees have the right to be accompanied at a disciplinary hearing?
Yes. Employees have the right to be accompanied by a colleague or trade union representative at a disciplinary or appeal hearing.
If the employee is disabled, then you should consider whether allowing them to have a companion outside of the two above categories is a reasonable adjustment.
What if the employee raises a grievance?
Raising a grievance is a common tactic used by an employee, usually aimed to try and delay any potential disciplinary proceedings against them. It is a common misconception that a grievance will delay a disciplinary procedure however, it does not.
A disciplinary and a grievance are two separate issues and should be dealt with separately, but concurrently so as to not delay the disciplinary and to allow the disciplinary to continue. There would only be very limited situations where the grievance and its substance impact upon the disciplinary procedure but this is rare.
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