Your staff can be one of the most positive parts of your business, your key to growth, part of a vibrant, happy culture. But sometimes, inevitably, behaviour or performance will go amiss. You might need to instigate disciplinary proceedings.
Depending on what they did, it could be hurtful as there has been a breakdown of trust, frustrating if it could have been avoided, sometimes embarrassing! It will almost always be distracting and lead to some drop in productivity.
One survey found that lateness and unauthorised absence were among the top reasons for having to conduct a disciplinary, with misuse of Internet and email, and then harassment following behind. Health and safety was a cause of a disciplinary in the previous two years for nearly half of the respondents. Thankfully, substance misuse and discrimination were at the bottom of the list of reasons.
The steps of a fair disciplinary procedure
It is essential to have fair policies and procedures for your disciplinary. Acas has a code of practice which, if not followed, and you are taken to tribunal, may result in a 25% uplift in any damages awarded.
If you have to embark upon a disciplinary, it should take place over four main stages. These are:
- The investigation – A fact find to understand what has happened, meeting the employee in question to get their side of the story and any witnesses to gather statements. This should not be carried out by the person chairing the disciplinary meeting.
- The hearing – A formal meeting between you and the employee (and someone to support them, either a work colleague or trade union representative). You should invite them to this in writing in good time, and provide them with all pertinent information with time to digest it. The hearing itself will be you outlining what they have done wrong as you see it and based on evidence, with them having a right to respond.
- The outcome – Consider all the facts carefully before reaching your decision. Always deliver this in writing separately from the hearing itself, so that there is no suggestion that your views were set in stone beforehand. Broadly, you may dismiss the complaint or uphold it. Penalties may be a first written warning, final written warning or dismissal. Clearly explain the complete findings, any mitigation you have considered and how long a warning would remain on their file.
- An appeal – There must always be a right of appeal which should be heard as soon as practicable and by someone independent from the original hearing.
Where SMEs may struggle, aside from the disruption of it all, is in having the right people in the business to carry out the investigation, the hearing and any appeal – because it is advisable to have a different person each time. Providing experienced people to perform these roles for you is one of the services we provide – not only do we help ensure you do it correctly, but we save you much of the time and stress.
Top tips for disciplinaries in SMEs
It is one thing to follow the process for the disciplinary, but there are plenty of other things to get right, and one or two approaches that could save you a great deal of time or hassle. Here are some of our top tips:
- If appropriate, see if you can manage the situation informally first with a quiet word, and clearly setting expectations. This saves the need for a formal disciplinary at all.
- Respect everyone’s confidentiality at all times. Where it is not possible to keep the disciplinary itself confidential, instruct your other staff directly not to talk about it.
- The employee has the right to see witness statements, so tell the witnesses in advance to avoid any unnecessary awkwardness later.
- Record everything in writing at each stage. It is helpful to have a note-taker in meetings.
- Even if you don’t recognise a trade union, an employee is legally permitted to bring a trade union representative or work colleague into their hearing.
- Demonstrate reasonableness at all stages. For instance, if they or their representative cannot make the hearing on your first proposed date, postpone for five days, or give an opportunity for them to engage in a different way such as by telephone or Zoom.
- As employer, always stay in control of the process.
Here to help
Supporting SMEs with disciplinaries is one of our main services. We would always recommend seeking professional advice before commencing a disciplinary, and as we have said we can help you at every step of the way should you need it. So please get in touch if you need assistance.
