Penalties

The Acas Code of Practice on disciplinary and grievance procedures suggests that there are two levels of sanction if the outcome of a disciplinary hearing is formal action:

• a written warning or improvement note 

• a final written warning.

Before 2009 verbal warnings were also considered to be part of the disciplinary hearing sanctions. This no longer applies and only the most serious cases will move to a formal disciplinary hearing. Cases that

would have resulted in a verbal warning are now dealt with under the second outcome of an investigatory meeting. However, the Code is clear that the type of action required will depend on the circumstances of the case – and if employers have separate ! procedures, then these may be followed. It is the principle of fairness that is important.

Written warnings and improvement notes

Written warnings should set out the nature of the misconduct and the change in behaviour required. In the case of poor performance, an improvement note should be given to the employee which sets out:

• the performance problem

• the improvement that is required

• the timescale for achieving the improvement

• a review date

• any support, including training, the employer will provide to assist the worker.

Improvement notes have equivalent status to a first written warning and failure to improve could result in a final written warning and, ultimately, dismissal. If the behaviour is so serious or the continuance of poor performance by the employee could have a sufficient detrimental effect on the organisation, then it may be appropriate to move directly to a final written warning.

Final written warning

When misconduct is considered not so serious as to justify dismissal but serious enough to warrant only one written warning, the employee should receive a first and final written warning. A final written warning should always contain a statement that any further misconduct can lead to dismissal.

Actions short of dismissal

The employer may decide that other sanctions may be more appropriate than dismissal. These include the options of: suspension without pay, loss of bonus or increment, transfer or demotion. These must only be used when they are an express or an implied term of the contract. Before a disciplinary hearing, suspension with pay may be appropriate.

Spent warnings

Whether you are giving a first written warning or a final written warning, both should state how long they are in force for. In its guidance, Acas gives six months as an example but time periods are not set in stone. If an employer feels that an offence warrants a longer written warning, to remain unspent for more than 12 months, then this is acceptable provided there is a policy which makes this clear to all employees. So, the length of time warnings will remain in force for should form part of your procedures.

Spent written warnings cannot be used as a reason for dismissing an employee in themselves. However, the Court of Appeal has said that, in some circumstances, it is possible to take expired disciplinary warnings into account when deciding whether or not to dismiss an employee. However, this should be the exception rather than the rule and legal advice should be sought before using a spent written warning as a reason for dismissal. Final step: dismissal

If all the previous stages have been observed or the employee has committed an act of gross misconduct then the employer may decide on dismissal. Unless the employee is being dismissed for reasons of gross misconduct, the employee should receive the appropriate notice period or payment in lieu of notice (if the contract provides for this).

Employers must ensure that if they are dismissing an employee for gross misconduct, they must provide evidence that this is actually gross misconduct and they are not simply classifying a minor offence as gross misconduct to dismiss a disliked employee; this would be unfair dismissal.

Disciplinary action: points to remember

• handle the matter promptly and gather all relevant facts

• consider suspension with pay while the matter is investigated

• be objective, fair and consistent

• consider each case on its own merits and avoid snap decisions made in the heat of the moment

• always follow your disciplinary procedure

• keep written records.

Encourage improvement: remember, the main purpose of the disciplinary procedure is to encourage an employee whose standard of conduct is unsatisfactory to improve.

Handle promptly: problems dealt with early can often be ‘nipped in the bud’, whereas delay can make things worse.

Gather facts: The manager should find out all the relevant facts promptly. If, in serious disciplinary cases, there are witnesses, statements should be obtained from them at the earliest opportunity. Details such as the employee’s current disciplinary record should be taken into account when handling disciplinary matters. In serious disciplinary cases it may be advisable to suspend the employee on full pay while conducting any investigation, especially if the issues relate to gross misconduct.

Be firm, fair and consistent: The disciplinary procedure is there to provide a fair and consistent method of dealing with problems of conduct or work performance. Maintaining satisfactory standards and discipline requires firmness on the part of the manager.

Always follow your disciplinary procedure: This is vitally important in all cases of discipline. Employees should always have the opportunity to attend a disciplinary hearing before any decision is made. Employees should also always have the opportunity to be accompanied during a hearing and they should always be given the right to appeal against the decision, no matter how clear-cut the case appears.