April 17, 2018

Sometimes, an employee does something so outrageous, you want to just kick them out of the practice… But, it’s worth taking a breath before you act!

There are is a lot of confusion about disciplinary procedures in the workplace, and we are frequently told by people that an individual has ‘already had a first written warning’ for something, so they are about to issue a final written warning for a repeat offence – sounds simple?

Well, as so often in Employment Law, it’s not so straightforward. There’s a common misconception that an employer can simply issue a formal verbal or written warning because someone has done something wrong, but this is far from the truth. To comply with the ACAS code of practice, you must follow a clearly defined pathway before sanctioning an employee.

  • Investigation – interview all involved parties
  • Decide if a formal disciplinary hearing is required
  • Invite the individual to a formal hearing. Remember they have a right to be accompanied by a colleague or a Trade Union rep.
  • Hold the hearing – ideally, this will be chaired by someone other than the person who conducted the investigation
  • Decide whether a formal sanction is required
  • Inform the individual of the outcome and, if you have applied a sanction, of their right to appeal the decision
  • If they appeal, you must hold another hearing, again with the individual having the right to be accompanied. Ideally, the appeal should be heard by someone who has so far not been involved in the process
  • Decide whether or not to uphold the appeal
  • Inform the individual
  • Formal sanctions must be recorded on the employee’s records. They are considered ‘spent’ after a specified period, but should remain on file as background information in the event of future issues with the employee.

Add into the mix that some employees faced with formal disciplinary action will launch a grievance, which will also require an investigation, a hearing (with the right to be accompanied), and an appeal if the outcome isn’t what they desire, and it’s little wonder that we feel employment law really hasn’t been written with small businesses in mind.

Sometimes, it’s possible to avoid following the above procedure, but you should take advice on your particular circumstances, as getting it wrong could leave you vulnerable to an Employment Tribunal claim.