Clauses In Our Disciplinary Procedure

Posted by David Cammack on 9th March 2016

Guide to our Disciplinary Procedure

Our Disciplinary Procedure template is for use by any employer. It provides rules as to how staff and their management should deal with (a) disciplinary matters involving staff and (b) under-performance by staff (i.e. capability).

By law all employers must have a written disciplinary procedure that meets the minimum standards under sections 3(1)(b)(i) and (c), of the Employment Rights Act 1996. The absolute minimum is a written statement of:
1. a person to whom the employee can apply if dissatisfied with any disciplinary decision relating to him or any decision to dismiss him;
2. the manner of submitting the application; and
3. further steps that will then be taken.

These can either be (a) included in the employment contract (or statutory statement of employment terms) or (b) provided in a separate policy or staff handbook, so long as it is mentioned in the contract or statement.

Our template fulfils this requirement and also complies with the Acas Code of Practice on disciplinary and grievance procedures (you can find the full Code here: http://www.acas.org.uk/media/pdf/f/m/Acas-Code-of-Practice-1-on-disciplinary-and-grievance-procedures.pdf).

All employers must treat their employees fairly and consistently in any disciplinary or capability process. Essentially this is about treating employees fairly (in accordance with the Acas Code of Practice). Breaching the Acas Code of Practice could lead to either (a) a constructive dismissal claim being brought by the employee if the disciplinary action has fallen short of dismissal or (b) an unfair dismissal claim if it has resulted in dismissal. Either way, as it would be treated as a serious breach by the employer.

A failure to act fairly in accordance with the Acas Code of Practice could result in a successful tribunal claim, and then the employment tribunal can penalise the party responsible by increasing or reducing the employee’s compensation by up to 25%. For example, the employee might be responsible for failing to co-operate or attend. However it might be more likely in a disciplinary matter that the employer gets the procedures badly wrong resulting in unfairness, perhaps by failing to follow its own disciplinary code in such as way as to breach the Acas Code of Practice.

Our template will help you to produce your own disciplinary policy that covers both discipline and capability in a way that will keep you compliant with the Acas Code of Practice.

Please note the following:

  • Workers and employees have the right to have a work colleague or a union representative accompany them at disciplinary hearings.
  • Please note that although it is not spelt out in the procedure (as that may not be helpful to the employer), if the work colleague or union representative chosen is unable to attend at the time set for the meeting, then the employee has the right to suggest a reasonable alternative time and, so long as this is within five working days of the previous date, the employer has to accept it (section 10 of the Employment Relations Act 1999).
  • If you start applying disciplinary and disciplinary procedures to agency workers or the self-employed, this may create a risk they become classed as employees.

Clauses in this Disciplinary Procedure

You will find the disciplinary policy split into 2 distinct sections:
(a) firstly, a disciplinary procedure; and
(b) secondly, a capability procedure – to deal with under-performance issues.

Once you are familiar with the process followed for the disciplinary procedure, you will find the capability procedure is fairly similar and has only been varied where relevant. However, matters of misconduct and capability are different and the in practice the correct process should be followed by you that is appropriate to the nature of the issue.

1. Disciplinary procedure

Changes to this policy – the procedure provides that you can amend the procedure at any time (subject as noted below). At the start, fill in the date (or month and year) when you adopt this policy. If you update it again in the future, update this date.

In the next paragraph, fill in your company name, country of incorporation, company number and registered office address where indicated.

Introduction – This section explains what a disciplinary and capability procedure is and when to use this procedure. It refers to the capability procedure as being a separate section after the main disciplinary section

While the procedure is expressed to be non-contractual, employers should consult employees or their representatives if they are thinking of revising their disciplinary procedure. Please note that if the disciplinary procedure has been approved after negotiation with a trade union, it may have become a contractual term of the employees’ contracts. In such a case, modify the template accordingly by deleting the last sentence in this paragraph (the words in square brackets). So long as it has not become a contractual term, the procedure can be applied with a degree of flexibility, staying within the requirements of the Acas Code of Practice, unless there is a good reason to depart from it while still being fair to the employee. Please note however that there is a need to treat employees the same in disciplinary or capability matters whenever possible, so as to avoid inconsistencies which lead to unfairness and can result in unfair dismissals.

Informal disciplinary discussions – For minor misconduct, an informal stage can be used to see if this resolves the issue without the need to go further unless it reoccurs. It is recommended that this first stage is an informal meeting between the employee and his or her line manager. Even if using this “informal” stage, a written note of the meeting ought to be made and kept with the employee’s personnel file.

Step one – This is when the investigation into the disciplinary matter takes place. The investigation should be carried out promptly to avoid delay and unfairness. At the end of this step it notes that the investigator needs to decide how to proceed: whether to drop the matter, proceed with a hearing or resolve it out by providing training, etc.

Step two – This section sets out the information that should be in the letter to the employee requiring them to attend a disciplinary meeting. Some care should be taken over it to ensure there is no unfairness.

While this section concludes with a note that the disciplinary hearing could proceed if the employee did not attend, that is not best practice and should only be permitted if unavoidable. The meeting should be rescheduled at least once if necessary to try and accommodate the employee and the person accompanying him or her.

Disciplinary sanctions – This section sets out the types of disciplinary warning that can be given and the table shows how long they remain active on the employee’s personnel file in the event of a recurrence of the issue or other disciplinary issues within the months that follow.

Most sanctions are self-explanatory, but please note the section headed “Other sanctions” – this part notes other penalties that can be imposed in addition to, or instead of, disciplinary warnings. The main thing is to impose sanctions that are fair and proportionate, striving to treat similar cases in your workforce (involving different employees) the same, to avoid unfairness.

Disciplinary decisions – This part sets out how the employee should be notified of the result of the hearing. The decision will not always be given immediately at the end of the hearing, as the person or persons adjudicating may need a little time to sum up the matter and make a decision. Promptly advising the employee of the decision avoids unfairness. After a verbal report of the decision, this should be confirmed in writing. This section sets out what needs to go in that letter.

Step three – This step permits the employee to have an appeal against whatever the outcome of step two was, which could be against the finding that there was misconduct or the type of sanction(s) imposed as a result or both the finding and the sanction(s). In the second paragraph, fill in the name or position of the person to whom the appeal should be addressed and the deadline for lodging an appeal if you want to set something different to the suggested 2 weeks.

Appeal hearing – The appeal should be conducted impartially and, where possible, by a manager who was not previously involved in the earlier stages of the disciplinary process. This might well be a more senior manager, but this does not have to be the case (except in Northern Ireland, where the Labour Relations Agency Code of Practice on Disciplinary and Grievance Procedures applies). Fill in the status of the person hearing the appeal in the first and last sentences of the third paragraph of this section (we have suggested this should be a director).

2. Capability Procedure

The capability procedure is very similar to that of the disciplinary procedure, but with any necessary changes to make it suit the capability process. While misconduct generally means the need for discipline, issues of capability may need more support from the employer, e.g. mentoring and training, and the need for this should always be considered. If the performance cannot be improved with such assistance from the employer, the outcome might be dismissal, but the aim of the procedure is to allow the employee a very fair chance of improving so that a dismissal can be avoided.

Disability – In accordance with the note in the policy, whether disability is a factor in any under-performance should be considered. Disability discrimination must be avoided. If reasonable adjustments can be made, the disabled employee should be given a chance to show improvement once they have been implemented.

Capability discussions – This section sets out what items should always be covered in any capability hearing. It includes setting targets for improvement that can be reviewed at a later meeting. A key part to consider is whether any training or other encouragement and assistance can be given that is likely to help the performance improve to the necessary standard.

Informal disciplinary discussions – For all capability issues, the process should start with an informal stage, to see if this resolves the issue without the need to go further unless performance drops again. It is recommended that this first stage is an informal meeting between the employee and his or her line manager. Even if using this “informal” stage, a written note of the meeting ought to be made and kept with the employee’s personnel file.

Formal capability meetings – This leads into the more formal process if the informal hearing has not resolved it. In the last sentence, keep the words in square brackets if you would normally have someone from your HR department present in addition to the employee’s line manager – if not, delete them.

The next paragraph sets out the minimum contents required in the letter requesting the employee to attend a formal capability hearing.

While this section concludes with a note that the capability hearing could proceed if the employee did not attend, that is not best practice and should only be permitted if unavoidable. The meeting should be rescheduled at least once if necessary to try and accommodate the employee and the person accompanying him or her.

Capability decisions – This part sets out how the employee should be notified of the result of the hearing. The decision will not always be given immediately at the end of the hearing, as the person or persons adjudicating may need a little time to sum up the matter and make a decision. Promptly advising the employee of the decision avoids unfairness. After a verbal report of the decision, this should be confirmed in writing. This section sets out what needs to go in that letter.

Capability sanctions – This section sets out the types of capability warning that can be given and the table shows how long they remain active on the employee’s personnel file in the event of a recurrence of the issue or other capability issues within the months that follow.

Step one – The three formal steps are similar. The first two both consist of:

  • a hearing;
  • (if improvement is needed) a period to allow the employee to improve; and
  • (if improvement is needed) a review meeting at the end of the period to check on improvement.

At the end of the hearing a first warning can be given if the hearing has concluded there has been under-performance.

A key point, as noted above, is to identify any training or other encouragement and assistance that can be given or is needed in order to give the employee a good chance to improve.

Step two – If the under-performance has continued (or reoccurred while there is a capability warning that has not expired), then the second step will be very like the first step. A further period will be given to the employee to allow them to demonstrate improvement, followed by a further review meeting at the end of it. At the end of the hearing a second warning can be given if the hearing has concluded there has been continuing under-performance.

Step three – This can either be a step like step two if the employee warrants a further opportunity to improve (this might not be too common) or it may result in transfer to another job or dismissal if the third hearing concludes that the employee is still short of the required standard of performance. The section in the procedure notes the additional items to be considered at the third meeting, e.g. if dismissal can be avoided.

Step four – This step permits the employee to have an appeal against whatever the outcome of any earlier step was. Technically this is not necessarily the fourth step, but could come after any or each of the earlier steps, although, given that step three could result in dismissal, it is most likely to come after a dismissal is made under step three.

In the second paragraph, fill in the name or position of the person to whom the appeal should be addressed and the deadline for lodging an appeal if you want to set something different to the suggested 2 weeks.

Appeal hearing – The appeal should be conducted impartially and, where possible, by a manager who was not previously involved in the earlier stages of the disciplinary process. This might well be a more senior manager, but this does not have to be the case (except in Northern Ireland, where the Labour Relations Agency Code of Practice on Disciplinary and Grievance Procedures applies). Fill in the status of the person hearing the appeal in the first and last sentences of the third paragraph of this section (we have suggested this should be a director).