Taking effective disciplinary action
The Unfair Dismissal Act 1977 -2001 has had a massive impact on the protection of employees by clearly defining ‘unfair dismissal’ and providing ready access to Employment Tribunal to have a claim heard.
The Act requires that the employer must give a written procedure to be applied to a dismissal to the employee within 28 days of the date of hire. The Act reversed the normal burden of proof in legal cases by putting the onus on the employer to show that there were ‘substantial grounds’ for the action and that ‘fair procedure’ was applied in the case.
Fair Procedure and natural justice
Employers are generally required to treat employees with consideration and respect in disciplinary situations. The disciplinary procedure should be considered as a tool to improve performance rather than as a means of inflicting punishment.
When drawing up and applying a disciplinary policy keep the principles of fairness in mind:
- Investigate the situation and acquire the facts
- the employee must be presented with the evidence and allowed an opportunity to answer the charge
- the employer must hear the case and form a judgement after having considered all the evidence
- the employee must be provided with the opportunity for representation in any meeting with management
- At any stage employees involved in the disciplinary procedure have the right to appeal a decision
Keep written records
The burden of proof on the employer is very onerous, so it is extremely important to keep accurate written records:
- Notes from all formal meetings
- Written communications between, employee, employer and relevant third parties
- Evidence relied on in the case, investigation report, documents and statements etc
- Record of the appeal (if appropriate)
- Records grievances raised during the disciplinary proceedings
The records should be treated as confidential and held in accordance with the Data Protection Act 2003. The Act gives the employee the right to access all the data held by the employer.
Investigating the case
In serious cases, such as, theft or bullying or abusive behaviour, it may be necessary to carry out an investigation into the circumstances before proceeding to the disciplinary stage. It is important to separate the investigation from the decision to take disciplinary action.
The purpose of the investigation is to establish the facts and it is important to deal with the employee in a fair and open minded way. Although there is no statutory right to be represented it is advisable to allow the employee to be supported by a fellow employee.
Informing the employee
If it is decided that there is a case to answer, the employee should be notified in writing. The notification should contain sufficient information about the allegation to enable the employee to prepare a response to the charge. This should include copies of all written evidence; investigation report, records, statements etc.
The notification should include a reminder of the employee’s right to be represented at the meeting.
Conducting the disciplinary meeting
The employee should receive sufficient notice of the meeting to enable the preparation of the defence. At the meeting the employer should outline the complaint and go through the evidence to support the case.
The employee should be given time to respond and address the allegations that have been made; to ask questions; present alternative evidence; and call witnesses.
If new facts emerge it may be necessary to adjourn the meeting to carry out further investigations.
After the meeting consider whether or not disciplinary action is appropriate and inform the employee in writing.