The disciplinary process is a key mechanism in any workplace and enables employees to understand what standards of performance and conduct is expected of them. An effective disciplinary procedure permits employers to investigate and take action against employees who commit misconduct and can also facilitate improvement in employee performance.
However, the disciplinary procedure can give rise to challenging and sometimes costly legal problems, which could result in an Employment Tribunal claim should an employee feel they have been treated unfairly. A clear and well-structured disciplinary procedure is therefore a valuable tool for employers to avoid allegations of disparity in treatment of employees and minimise the risk of legal action.
Topics covered in this recording:-
1. The disciplinary process generally:
- Overview – when should a disciplinary procedure be conducted?
- The statutory ACAS Code of Practice and 25% uplifts and downshifts to compensation;
- Dealing with internal contractual and non-contractual disciplinary procedures – how should they be written?
- Do you need to investigate each disciplinary issue?
- Who should investigate?
- Who should chair the disciplinary meeting, and can this be the same person as the investigator?
2. Dealing with disciplinaries – tricky issues:-
- What happens if there is a related criminal investigation. Do you have to suspend taking disciplinary action?
- What to do if the employee goes off sick, or states that the disciplinary process is making them unwell?
- Should your disciplinary procedure have an appeal stage?
- In what circumstances can you dismiss somebody without first giving them a disciplinary warning?
- What does “gross misconduct/gross negligence” mean?
- Dealing with disciplinaries after employment ends. Can you/should you continue the process?
- Should you suspend the employee who is the subject of the disciplinary process? What are the legal risks? Do you have to consider their health and wellbeing?
- What happens if “without prejudice” points are raised?
- What if a grievance is raised complaining about the disciplinary process itself?
- What happens if witnesses are reluctant to come forward? Can you anonymise their evidence?
- What if the accused person wants their lawyer to attend the meeting with them? Can you refuse? In all cases?
- How can legal advice privilege help to protect the employer and what are the limits of this protection?
We hope that you find this update useful and feel free to get in touch if you have any questions.
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Jones Chase is a specialist employment law firm based in the centre of London with an excellent track record of looking after those that we assist.
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