Disciplinary procedures

Disciplinary procedures should not be seen mainly as a means of punishing employees but rather as a way of encouraging improvement.  Some organisations prefer to have separate procedures for dealing with issues of conduct and those of capability.

Current legislation requires an employer to provide their employee with a written statement of particulars of employment within two months of commencing employment. This statement should include a note outlining any disciplinary rules and who employees should address any appeals to if they are dissatisfied with a disciplinary/dismissal decision.

When dealing with disciplinary cases, employers need to be aware of both the law on unfair dismissal and the Statutory Dispute Resolution Procedures contained in the Employment (Northern Ireland) Order 2003 for dismissing or taking disciplinary action against an employee.  The LRA Code of Practice on Disciplinary and Grievance Procedures sets out the steps that should be followed by the employee and the employer.

Good disciplinary procedures should:

• be put in writing;
• say to whom they apply;
• be non-discriminatory;
• allow for matters to be dealt without undue delay;
• require employees to be informed of the complaints against them and supporting evidence, before a meeting;
• allow for information to be kept confidential;
• tell employees what disciplinary action might be taken;
• say what levels of management have the authority to take various forms of disciplinary action;
• give employees a chance to have their say before management reaches a decision;
• provide employees with the right to be accompanied;
• provide that no employee is dismissed for a first breach of discipline, except in cases of gross misconduct;
• require management to investigate fully before any disciplinary action is taken;
• ensure that employees are given an explanation for any sanction; and
• allow employees to appeal against a decision.

When a disciplinary matter is being investigated, care should be taken to deal with the employee in a fair and reasonable manner. The more serious the matter the more thorough the investigations should be.

Managers need to be firm and fair when dealing with disciplinary issues.  They should be unbiased, keep an open mind, and should not judge issues before they have all the facts.

The manager should make arrangements for carrying out enquiries, investigations and proceedings carefully and avoid making snap decisions, without thinking about all the facts.

The attitude and conduct of employees may be seriously affected if management fails to apply the same rules to cases with the same or similar facts.  The manager should try to make sure that all employees are aware of the organisation’s normal practice for dealing with misconduct or unsatisfactory performance.

While consistency is important, it is also essential to take account of the circumstances and people involved.  Personal details such as length of service and any current warnings will be relevant.

The employer must not discriminate on the grounds of sex, pregnancy and maternity leave, marital status, gender reassignment, religious belief (or, similar philosophical belief), political opinion, age, race (including colour, nationality, ethnic or national origins), disability and sexual orientation.  

Where the manager concludes that unsatisfactory performance is due to a lack of ability which in turn is due to a disability, they should take account of the provisions of the Disability Discrimination Act 1995 and, in particular, the statutory provisions regarding making reasonable adjustments under that Act.

Someone facing possible disciplinary action may be suspended for a period of time so that the employer can investigate the alleged misconduct, for example in cases involving alleged gross misconduct, where relationships have broken down or where there are risks to an employer’s property or responsibilities to other people.  Usually an employee who is suspended is entitled to their normal pay during their suspension.

Employers should be very careful about deciding to suspend someone in this situation.  They should consider first if it would be possible to allow the employee to take a period of annual leave or other absence.  It may also be better to transfer the individual temporarily to another work station or part of the organisation.

The employer should make it clear that any suspension action taken is not a disciplinary action or sanction, nor is an indication of blame or guilt.  Suspension on full pay should be reviewed frequently to ensure it is not for an unnecessarily long period and the investigation should be conducted in a prompt and reasonable manner.  

Having collected all the facts, the manager should decide whether to:

• drop the matter – there may be no case to answer or not enough evidence, or the matter may be regarded as trivial;
• arrange counselling or immediate retraining to try to correct a situation and prevent it from getting worse, without using the disciplinary procedure; or
• write to the employee telling him or her that they are considering disciplinary action for specific reasons and invite the employee to a formal disciplinary meeting – this will be necessary when the matter is considered serious enough to warrant disciplinary action.

Employees have a statutory right to be accompanied at a disciplinary hearing by a companion.  A companion may be a work colleague or a Trade Union official. The Trade Union Official may be either a full-time official employed by a Union or a lay Union official who has been reasonably certified in writing by his/her Union as having experience of, or as having received training in, acting as a worker’s companion at disciplinary hearings.

For the purposes of this right, disciplinary hearings are defined as meetings that could result in:

• a formal warning being issued - a warning that will be placed on the employee’s record and/or;
• the taking of some other action, e.g. suspension without pay, demotion or dismissal; or
• the confirmation of a warning issued or some other action taken such as an appeal hearing.

Informal discussions or counselling sessions do not attract the right to be accompanied unless they could result in formal warnings or other actions.  Meetings to investigate an issue are not disciplinary hearings. If it becomes clear during the course of such a meeting that disciplinary action is called for, the meeting should be ended and a formal hearing arranged at which the employee will have the right to be accompanied.

The employee’s companion should be allowed to address the hearing in order to:

• put the employee’s case;
• sum up the employee’s case; and
• respond on the employee’s behalf to any view expressed at the hearing.

An employee’s companion can also confer with the employee during the hearing.  The companion has no right to answer questions on the employee’s behalf or to address the hearing if the employee does not wish it.  Employees whose employers fail to allow a reasonable request to be accompanied may complain to a tribunal.

Employers may decide to suspend someone temporarily without pay instead of dismissing them.  Employers need to make sure they have a contractual right to suspend without pay. If they don’t have that right written in the contract of employment, they could face a Breach of Contract claim.  The employer should not use suspension as a disciplinary penalty before following the statutory procedure.

In summary the statutory procedure involves three steps:

1. A statement in writing of what the employee is meant to have done wrong (the allegation) and what the employer is considering doing;
2. A meeting to discuss the situation and a decision; and
3. Offering the right of appeal.

Although organisations can be flexible about how formal their procedures are, they must follow the statutory dismissal and disciplinary procedure as a minimum if they are considering dismissing an employee or imposing certain other kinds of penalty (which their contracts must allow for) such as suspension without pay or demotion.  Unless employers follow the statutory procedure, industrial tribunals will find dismissals automatically unfair. Industrial Tribunals may also adjust any award of compensation up or down by 50% for failure by either party to follow the relevant steps set out in the LRA’s Code of Practice.

But note that the statutory dismissal and disciplinary procedures apply only to ‘employees’ (see Starting Out – Who is an employee? section).  However, it is good practice to allow all ‘workers’ access to disciplinary procedures. The right to be accompanied applies to all workers, and the term ‘workers’ is used in section 3 of the Code of Practice.