You need to demonstrate that you have been fair and reasonable in your treatment of any employee subject to disciplinary action. Your procedures must now be equivalent to or better than the statutory minimum (see question two), but provided that you observe the guidelines set out below, you will comply with these requirements. Your procedures should include:
- a commitment by you, to investigate any offence that gives rise to a disciplinary action;
- a statement of the employee's right to be accompanied to any disciplinary hearing by a work colleague or trade union official, who has the right to contribute (whether or not you recognise the trade union, the official will be entitled to attend);
- a commitment by you, to set out in writing to the employee details of the alleged conduct or characteristics or other circumstances that have led you to take disciplinary action against him (or her). The evidence must be provided before the disciplinary hearing, so that the employee can prepare his 'defence';
- a commitment by you, to hold an investigatory meeting with the employee before any action is taken (except in cases where suspension is necessary), and to inform the employee of the outcome of the meeting;
- a commitment by you, to give the employee an opportunity to state his case at each disciplinary meeting, and to take any mitigating circumstances into account;
- examples of the types of offence that constitute misconduct and gross misconduct (but make it clear that these are only examples, and not exhaustive);
- an explanation that the seriousness of the offence will dictate the stage at which the disciplinary process is entered. For example, for offences of serious (but not gross) misconduct, the outcome of the first step in the disciplinary process might be to issue a written warning;
- an adequate system of warnings. For example, one verbal warning, one written warning, and one final written warning before dismissal;
- a system for ensuring that all meetings and decisions are recorded in writing and kept in the employee's personnel file. Try to ensure that the minutes of any meeting are typed up straight away, and agreed with the employee as soon as possible thereafter;
- a commitment by you, to allow the employee sufficient time (and if necessary training) for improvement, if the issue is poor performance;
- confirmation, at each stage of the disciplinary process, of what the next step will be if this stage does not have the desired effect. In particular, you should make it plain on issuing a final written warning, that the next disciplinary offence could lead to dismissal;
- ? a commitment by you, to give adequate warning of any disciplinary meeting. Any such meeting should be chaired by someone impartial, at senior management level. If the issue at stake involves a breakdown in relations between the employee and their line manager, the line manager should not chair or conduct any meeting. This is particularly the case with appeal hearings;
- opportunities for the employee to appeal, at any stage of the disciplinary process, against any disciplinary action taken. A further meeting must be arranged to hear the appeal, and the employee must be informed of the outcome. Ideally the person hearing the appeal will not have been involved in the decision on disciplinary action. The employee has the right to be accompanied at any appeal.
The statutory procedures are likely to be abolished sometime in 2009. A draft employment Bill has been put out for consultation following the Gibbons Review (a government-commissioned review looking at the whole question of employment dispute resolution). The Gibbons Review said that, under the present system, far too many disputes end up in front of Employment Tribunals; that it takes far too long for them to get there; that the whole procedure is far too costly for employers (an estimated average of £9,000 per case defended); and that it is also far too stressful and damaging (in terms of future work prospects) for employees). The draft Bill proposes:
- Repeal of the statutory disciplinary and grievance procedures introduced in 2004.
- New powers for tribunals to adjust awards if there is unreasonable failure to comply with a Code of Practice (probably an updated version of the current ACAS Code on disciplinary and grievance procedures).
- Extended powers for ACAS to conciliate in disputes.
The object of the changes is to cut short disputes where possible; where this is not possible to divert them to less formal methods of dispute resolution, and to rely on the Employment Tribunal system only in the most intractable or legalistic cases.
