Dismissal and disciplinary procedures

Situations inevitably arise when an employer needs to take disciplinary action against an employee. When they do, it is vital, both from the point of view of efficient management as well because it is a requirement of the law, that businesses have written disciplinary procedures and that the employees and managers are aware of them and know how, and when, to follow them when problems arise. Here we will look specifically as issues relating to those disciplinary procedures and how they affect the employer/employee relationship. For further details of the duty generally, and for information about grievance procedures (the need for which arises when the employee has problems with the employer) see elsewhere in this section. For more information, contact employmentlawhelp

Introduction

It is a requirement of the law that an employer has appropriate disciplinary and dismissal procedures and that the employer informs all employees about those procedures and how they affect the workforce. It is usual for this information to be included in the written statement which the employer provides to the employee or included in some other document which the employee is likely to read, for example a staff handbook or business intranet. If they form part of the statement given to employees then it is vital that this is given during the first two months of the employment. So far as the employer is concerned, failing to provide this information can be a costly omission and could result in any dismissal being judged to be automatically unfair.

Ideally, the disciplinary and dismissal procedure should operate as a set of guidelines or rules which:

• permit the issuing of warnings or the imposition of sanctions on those members of the workforce whom they deem to have broken rules of conduct or who have not carried out their jobs properly or adequately.
• gives staff the security of knowing how they will be dealt with in such circumstances and what is likely to happen to them as a result

The law states that if an employer is planning to take disciplinary action against an employee or is considering dismissing that employee then they must, as a minimum, follow a statutory three-step disciplinary procedure. They can, if they wish, have a more complex procedure which provides for more steps and more safeguards, provided that the steps provided do not conflict with the statutory steps and provided that all of the statutory steps are covered. Failure to do so can render the dismissal of any employee who has been with the firm for more than a year as automatically unfair

Steps falling outside of the statutory process

Not all disciplinary processes need necessarily fall within the requirement for the statutory steps to be followed. Included among those are:

• Warnings – an employer may use verbal or written warnings as a preliminary route to indicating to an employee that they are unhappy with either their conduct or their performance. These may progress from verbal warnings at the outset to written warnings when matters become more severe. However, as soon as the employer moves towards taking specific disciplinary action – such as deducting wages or dismissal – the the statutory procedures have to be followed
• Suspensions - an employer can suspend an employee without having to comply with the procedures provided that it is on full pay. Any attempt to do so on reduced pay would invoke the need for the procedures to be followed.

The statutory disciplinary and dismissal procedure

Assuming that the employer is not going down one of the less formal routes set out above, then the standard statutory three step dismissal and disciplinary procedure will have to be followed.

Step one – submitting a written statement

Any employer who is contemplating disciplinary action or dismissal must start by sending to the employee a written statement which sets out the precise nature of complaint against the employee.

Whilst the statement does not necessarily have to set out what sanction the employer is intending to impose – for example demotion or dismissal, it does need to provide sufficient information to enable the employee to defend themselves at any subsequent meeting. In particular it should contain details of any evidence which the employer may have gathered and ideally, if misconduct is involved, should specify the nature of the misconduct and the date upon which it occurred.

In the event that the employee feels that any relevant information is missing then he or she should request that the information be made be made available before the date of the subsequent meeting in order that they can respond adequately to the complaints made.

Step two – meeting between employer and employee

Once the statement has been sent a meeting must be arranged to discuss the complaint. No disciplinary action must be taken prior to that meeting.

The employee has a right to be accompanied at the meeting by either a colleague or a trade union representative and the meeting must be held at a time which is convenient both to the employee and the accompanying person. Failure by the employee to attend the meeting could result in reduced compensation for the employee should they subsequently succeed in proceedings before an Employment Tribunal. However, if for any reason unforeseen circumstances should arise and the employee be unable to attend then the meeting should be rescheduled.

Following the meeting the employer must inform the employee of the decision and action that will be taken. The employee must also be told of his or her right to appeal against the decision. That right of appeal must be used before a matter is taken forward to the Employment Tribunal otherwise, in the event of succeeding in a claim against the employer, the employee may have any compensation awarded reduced.

Step three - appealing the decision

If the employee is unhappy with the decision of the employer then they have the opportunity to appeal. They should inform the employer in writing if they intend to do so and the employer must then arrange a convenient time and place for the meeting to be held. As with the first meeting, the employee should attend this meeting if they are not to risk having potential compensation reduced.

Following the appeal meeting the employer must decide what steps they are going to take. This is the final decision and if the employee is unhappy with it then they must take the matter to the Employment Tribunal.

Grievances during the disciplinary process

If the employee wishes to raise a grievance during the disciplinary process then there are special rules which apply, depending upon when the grievance is raised. This will not apply to disputes as to the disciplinary process itself which must be dealt with through that process, but may apply to other matters – for example that the employee is being discriminated against or bullied, possibly by a line manager, because they have challenged the decision.

If the grievance is raised before the appeal meeting then it will be dealt with at that meeting – if it is raised afterwards then the normal grievance process will have to be followed.

Dismissals without investigation

In certain extreme circumstances the employer may wish to dismiss the employee without carrying out an investigation into the situation – for example where there has been a blatant and obvious instance capable of leading to dismissal. In most cases such instant dismissals are nearly always treated as unfair dismissal, however, in the few circumstances where the employer is entitled to do so then the employer must write to the employee setting out why he or she is being dismissed and offering them the opportunity to appeal against that decision. If the employee chooses to do so then an appeal meeting must be arranged and the procedure as above will then apply.

Circumstances where the disciplinary and dismissal process need not be followed

There are a number of circumstances where the employer would not be expected to follow the disciplinary and dismissal process, either because there is no need to do so or because it would not be practical to do so. These include:

• where the disciplinary or dismissal action was taken before 1 October 2004, even if the disciplinary action continues after that date
• collective issues, for example:
  • where there are discussions between the employer and elected employee representatives regarding the manner in which issues are to be taken forward e.g. dismissing a number of employees and then rehiring them on different terms
  • where there is a collective redundancy involving more than 20 employees and there are discussions with a recognised trade union or elected employee representatives
• where circumstances render it impossible for the employment to continue – e.g. destruction of the work place
• where the behaviour of one party is so unreasonable or violent that the other could not be expected to sit down and discuss the matter with them. Note that unpleasant behaviour by the employee such as causes the employer anxiety or stress may not in itself be sufficient – there usually has to be fear of violence, harassment or damage to property
• where a number of employees are being dismissed for taking part in industrial action
• where it would be illegal for the employer to continue to employ the employee
• where it is impossible to conduct the process – for example the employee becomes seriously ill