The Manager's Guide to Discipline

Derek Eccleston, Kate Goschen

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9781138422735
• eBook ISBN: 9781351886000
• Topic: Business
• Subtopic: Business General
• Index: Business

For most managers, let alone the employees involved, the disciplinary process can be painful and embarrassing. Poor performance tends to be confused with misconduct and consequently carries the stigma of punishment; this despite the fact that most company policies and indeed the ACAS Code (correctly) put emphasis on improving behaviour or performance, rather than punishment. Derek Eccleston's concise guide provides a clear picture of the purpose and the process of the disciplinary procedure. This toolkit approach contains invaluable information and includes clear checklists and sample letters to help guide managers and supervisors through the minefield of employment rights, explaining what to do and how to do it. Written in a no nonsense way, The Manager's Guide to Discipline is free of legal jargon and focuses on the practical issues throughout. It will help to protect the organisation, whilst ensuring matters are dealt with, not left or brushed under the carpet because of a lack of management confidence. This essential reference will encourage managers to approach performance and disciplinary problems proactively and with more confidence and will significantly reduce the risk of getting it wrong.

1     The Basic Requirements

To be disciplined for an act of misconduct or poor performance can have a serious effect on the employee concerned. At best, it acts as a ‘black mark’ and at worst it could lead to dismissal. So a decision to take disciplinary action should not be taken lightly and procedures must be followed closely. Failure to follow the procedures and/or if the company have acted unreasonably in all the circumstances, will allow the employee to claim unfair dismissal before an employment tribunal – provided they have one year’s continuous service.

Disciplinary rules and procedures are necessary for promoting orderly employment relations as well as fairness and consistency in the treatment of employees. They also enable companies to influence the conduct of employees and deal with problems of poor performance, thereby assisting companies to operate effectively. Rules set out standards of conduct and performance at work; procedures ensure the standards are adhered to and also provide a fair method of dealing with alleged failures to observe them. It is important that employees know what standards of conduct and performance are expected of them (and the consequences of not meeting them) before any disciplinary action can be taken, otherwise this will be deemed as unfair. This may be achieved by giving every employee a copy of the rules and by explaining them. In the case of new employees this should form part of the induction programme.

The Disciplinary Procedures should be applied consistently because an employment tribunal may view inconsistency without good reason as unfair.

A sound process will normally involve the following stages:

The Six Stages of Discipline

1. Investigation. Collect evidence. No action should be taken without taking time to check the facts. It is permissible to suspend an employee (normally on full pay) during an investigation – but only when serious or gross misconduct is suspected.
2. Invite the employee to a formal meeting, in writing. They can bring a companion – this is a statutory right at any formal meeting.
3. Adjourn before reaching a decision.
4. Further hearing(s) if necessary.
5. Decision, given in writing, confirming right to appeal.
6. Appeal – NB: generally very important.

Do I Always Have to Follow This Process?

The right to claim unfair dismissal requires one year’s continuous service as an employee. Strictly speaking therefore it is not essential to follow a full procedure where the employee has less than one year’s service, as no claim for unfair dismissal is possible. However, claims for discrimination and breach of contract do not require a year’s service, so care is still required when dismissing anyone (including casual staff), irrespective of service. See Appendix IV: Checklist 7 for more information on qualifying periods. If a probationary period is used for new employees it is advisable not to put the full company discipline scheme in their contract until probation has been satisfactorily concluded. A shorter process, perhaps giving just one warning prior to dismissal, can be used. This will reduce the chances of a breach of contract claim. Best practice is to always follow a basic procedure, as outlined above, to reduce the risk of a claim. It is also possible to justify not following a full procedure where the conduct of the employee continues to be unacceptable – aggressive, threatening, abusive and so on.

Managing Agency and Casual Staff

Case law has highlighted how important it is for companies to recognise who has responsibility for the management (and discipline) of agency staff.

A worker was engaged by an agency under a contract for services. The agency placed the worker with a large employer and he continued to work there, under this arrangement, for some time. The employer began experiencing problems with the worker’s performance. The worker was disciplined, suspended and eventually dismissed by management at the large employer.

The Tribunal decided that the worker could claim unfair dismissal against the employer – not the agency. The way that the management had dealt with the worker had, in effect, created an implied employment relationship. A contract of employment can be expressed or implied – the courts are showing a willingness to imply a contract of employment where the facts suggest the relationship was like employment.

If organisations experience problems with agency workers, it is important to involve the agency in dealing with the issues. Do not treat agency workers as your own employees or the courts may give employment protection to them. It is important to remember that agency workers (not just employees) enjoy an increasing number of employment rights.

The message from the courts is that agency and casual arrangements are meant to be for weeks or months, not years.

Avoid Problems in the First Place by Establishing Disciplinary Rules and Procedures

Disciplinary rules set down the standards that govern the behaviour of employees in the workplace (for example, no smoking, dress code, timekeeping). The procedures inform individuals as to what will happen if the expected levels of conduct or performance are not kept. Clear procedures make it easier for management to deal with poor performance and misconduct issues.

The Advisory Conciliation and Arbitration Service (ACAS) has issued a Code of Practice on handling discipline at work. Whilst this is not a legal requirement, it has heavy influence with tribunals. Anyone involved in disciplinary issues should have a working knowledge of this Code. The Code recommends a number of features for fair disciplinary procedures. A fair disciplinary procedure should:

1. (a) be in writing;
2. (b) specify to whom the procedure applies;
3. (c) provide for matters to be dealt with promptly;
4. (d) indicate the different disciplinary actions which may be taken;
5. (e) specify which levels of management have the authority to take the various forms of disciplinary action. It is good practice to ensure that first line supervisors do not normally have the power to dismiss without reference to senior management;
6. (f) provide for employees to be informed of complaints against them and to be given an opportunity to state their case before decisions are reached; it is recommended that an employee be informed in writing of the employer’s concerns;
7. (g) give individuals the right to be accompanied by a trade union representative or a fellow employee of their choice. Since 2000, regulations have provided certain rights to workers (typically agency or casual staff). In the past these rights have only been available to employees – individuals who have a contract of employment. One of these new rights for workers is the right to be accompanied at disciplinary or grievance hearings. It is recommended that everyone is offered a companion – including casual workers and temporary staff who may not be classed as employees;
8. (h) ensure that, except in the case of gross misconduct, no employees are dismissed for a first breach of discipline;
9. (i) ensure that disciplinary action is not taken until the case has been thoroughly investigated;
10. (j) ensure that individuals are given a full explanation for any disciplinary penalty imposed;
11. (k) provide the right of appeal and specify how individuals are expected to appeal;
12. (l) ensure that all employees are aware of the offences that the employer considers as gross misconduct. A body of case law has made it clear that if an employee can allege that they were unaware that the offence committed was classed as gross misconduct, the Tribunal will consider that when making a decision.

Absence of any of the above features would be likely to cause an employer some difficulty if the case is referred to an employment tribunal.

In addition to the above features of a fair disciplinary procedure, employers should ensure that:

1. (a) the procedure applies to all employees irrespective of length of service – although, remember that to claim unfair dismissal an employee needs one year’s continuous service;
2. (b) the procedure does not discriminate in any way;
3. (c) there is a provision to suspend (initially with full pay) employees during the investigation stage;
4. (d) where the facts themselves are in dispute, no disciplinary action is taken until the facts have been established.

Of course, the ACAS guide is quite literally that: a guide. The precise nature and content of disciplinary rules and procedures will always depend on a number of issues. These are:

• the type of work done at the establishment
• the working conditions prevailing
• the size of the establishment.

It is for each and every organisation to decide on the specific content of disciplinary rules and procedures. Certain offences can be more serious in some firms than others.

SETTING STANDARDS

For any disciplinary action to have a chance of a successful outcome, there are a number of essential ingredients.

These are:

1. (a) the organisation has a clear set of standards;
2. (b) the standards have been communicated to all workers;
3. (c) factual evidence is available which indicates that conduct or performance is below the accepted standard;
4. (d) there are clear rules and procedures, which outline to all employees how the issue will be dealt with.

This is a crucial concept. It is virtually impossible to bring about an improvement in someone’s performance or conduct unless these elements are present. Unless a worker is prepared to acknowledge that they were aware of a standard, and there is clear evidence that they are below the standard, a successful conclusion is unlikely.

2 Disciplinary Procedures in Operation

Should a manager decide to take disciplinary action against an employee, the golden rule is that the Company Disciplinary Procedures should always be followed.

The disciplinary procedures should not be viewed primarily as a means of punishment or of imposing sanctions, rather they should be seen as a way of helping and encouraging improvement amongst employees whose conduct or performance is unsatisfactory. With the possible exception of gross misconduct the approach should be to try to bring the employee up to the required standard of performance. Discipline should be more about improving conduct, behaviour or performance and less about punishment.

GROSS MISCONDUCT AND SUSPENSION FROM WORK

Gross misconduct is conduct so bad that it enables the employer to dismiss for a first offence (after following the process outlined the previous chapter). Never ‘instantly’ dismiss any employee, it is likely to be considered as unfair). The disciplinary policy should give some examples of what constitutes gross misconduct. Some offences would be classed as gross miscond...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Acknowledgements
• Introduction
• Chapter 1 The Basic Requirements
• Chapter 2 Disciplinary Procedures in Operation
• Appendix III Letter H Formal Stage 3 - Final Written Warning
• Appendix III Letter J onfirmation of Dismissal with Notice
• Appendix III Letter K Confirmation of Summary Dismissal for Gross Misconduct
• Appendix III Letter L Notification of a Disciplinary Appeal Hearing
• Appendix III Letter M Confirmation of the Outcome of a Disciplinary Appeal Hearing
• Appendix IV: Checklist 1: Formal or Informal Warning?
• APPENDIX IV: Checklist 2: Preparation for a Disciplinary Hearing
• APPENDIX IV: Checklist 3: Carrying Out a Disciplinary Hearing
• APPENDIX IV: Checklist 4: Formal Warning Letter Content
• APPENDIX IV: Checklist 5: Investigations Checklist
• APPENDIX I Model Company Disciplinary Procedure (Conduct)
• APPENDIX IV: Checklist 6: Persistent Poor Performance
• APPENDIX IV: Checklist 7: Qualifying Periods for Unfair Dismissal
• Index
• About the Authors
• Appendix II Model Capability Performance Improvement Procedure
• Appendix III Letter A Suspension from Work
• Appendix III Letter B Notification of an Investigatory Meeting
• Appendix III Letter C Confirmation of No Action Following an Investigatory Meeting
• Appendix III Letter D Notification of a Disciplinary Hearing
• Appendix III Letter E Confirmation of No Action Following a Disciplinary Hearing
• Appendix III Letter F Formal Stage 1 - Verbal Warning
• Appendix III Letter G Formal Stage 2 - First Written Warning