Employment Chatts Week 3: Disciplinary Process

In this week's mini-series we look at what should and should not be done by an employer when it comes to the disciplinary process.  It is important to be aware that if matters become contested and a claim is made to the Employment Tribunal, any compensation award can be increased by up to 25% if a fair procedure has not been followed. 

In today's article we will cover the key do's and don'ts of the disciplinary meeting.

Preparing for a disciplinary meeting

• DO proceed to a formal disciplinary meeting if the investigation process has revealed enough evidence to do so. 
• DO inform the employee in writing that there will be a disciplinary meeting; the letter should set out the accusations made and possible consequences.  It should state the date, time and place of the meeting and their right to be accompanied. 
• DO allow an employee to be accompanied by a Trade Union representative or colleague.  Consider any contractual rights or disabilities which may mean that they are entitled to be accompanied by someone else, such as a relative.
• DO allow the employee sufficient time to prepare for the meeting.  For example, do not invite them to the meeting on the same day as the meeting is due to take place.
• DON'T disregard the findings of the investigation process.
• DON'T ignore the business' own procedures and policies.
• DON’T forget that a formal disciplinary process can be a stressful time for the employee.  They may feel upset and angry. 

The Disciplinary Meeting

• DO consider everyone's safety at all times in view of the ongoing pandemic and arrange remote meetings where possible.
• DO ensure that an appropriate person is appointed as Chair of the meeting and state their role and what will happen at the outset of the meeting.
• DO reiterate the allegations to the employee and allow the employee to give their comments.
• DO summarise the key points at the end of the meeting.
• DO consider if any employees have previously had similar allegations and what their sanction was, to ensure everyone is treated equally.
• DO consider the employee's length of service, which can affect which claims they may be able to bring in an Employment Tribunal.  For example, for discrimination claims no length of service is necessary.  However for unfair dismissal claims, 2 years' service is required to bring a claim.
• DON’T' forget to have good listening skills and don’t simply dismiss the employee's comments.  Take time to listen to and understand what they are saying.
• DON'T allow the meeting to continue if the employee is very stressed or emotional.  It is usually advisable to adjourn to allow the employee time to compose themselves.  However don't forget that there is only a certain level of behaviour which can be tolerated.
• DON'T make a decision there and then.  There should be an adjournment to consider the evidence and employee's comments.  For example, it is not appropriate to give the employee a written warning during or at the end of the meeting; this shows that their comments have not been considered before a decision was made and this is not good practice.
• DON’T forget that there are many possible outcomes to a disciplinary meeting and the appropriate sanctions will vary.  These can include taking no formal action, giving a first written warning, giving a final written warning if it is a serious enough one off offence or of there are other warnings on the employee's file, or dismissal. 
• DON'T forget that the duration of any warning should be reasonable; we suggest 6 months for a first written warning and 12 months for a final written warning. 

Next week we will look at the appeal process.

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