Managing discipline - Investigation to possible dismissal: A guide
Managing discipline - Frequently-asked questions
- How do I investigate an allegation?
- What constitutes gross misconduct?
- How do I decide whether to suspend the employee during the investigation and until the matter is decided?
- What should I keep in writing?
- Why should I keep disciplinary matters in writing?
- How do I prepare for a disciplinary meeting?
- When do I hold a disciplinary meeting?
- Acas uses the word 'reasonable', as in judging whether someone has behaved reasonably, or holding a disciplinary meeting without unreasonable delay. But how do you determine what is reasonable?
- How do I hold a disciplinary meeting?
- What if a witness wants to be anonymous?
- Should the employee give the employer a copy of their evidence before the meeting?
- Who can accompany an employee at a disciplinary meeting?
- What can a companion do at a disciplinary meeting?
- What if the companion cannot make the meeting?
- I need to take disciplinary action against an employee, but they are off work ill. What should I do?
- What if the employee doesn't turn up for the disciplinary meeting, or a re-arranged meeting?
- What if an employee raises a grievance during disciplinary proceedings?
- How do I hold an appeal hearing?
- What if the employee under investigation is a trade union representative?
- Can I dismiss or discipline someone if they have been charged with or convicted of a crime?
- An employee doesn't seem up to the job - what do I do?
- How do I discipline someone without souring the atmosphere in the workplace?
Ideally, the person conducting the investigation should have no connection with the allegation, so they can find out the facts in a fair and reasonable manner.
But finding a person who is unconnected is not always possible in a small business. However, whoever carries out the investigation must do so with an open mind.
That entails talking to all the parties involved and producing written evidence, and being willing to look for evidence supporting the employee and against them.
People involved should be asked not to discuss the allegation - or look for corroborating evidence or verification of what the employee and other staff are saying.
And remember to keep an open mind, as what you uncover may not be what you expected. For example, someone's performance may have deteriorated because of a family bereavement they haven't told anyone at work about.
Also, at this stage the employee does not have a right to be accompanied. For more on investigation go to page 17 of Discipline and grievances at work: The Acas guide [1Mb].
Fighting, bullying, stealing, gross negligence and serious insubordination for which an employee could be dismissed without notice pay.
In cases of gross misconduct, you may want to think about suspending the employee on their normal pay until their case is decided.
How do I decide whether to suspend the employee during the investigation and until the matter is decided?
Factors include the size of your business and whether the employee's role requires specialist skills.
A large business can have enough staff and skills to cover most roles if an employee is suspended, but in a small firm that may not be an option.
An employee is usually suspended to avoid the risk of others involved in the investigation feeling intimidated while it is conducted, or evidence being corrupted.
In a small firm, the employer will have to weigh suspension against the impact on their business of the absence of the employee if no-one else can cover the role.
But whether you suspend, or not, will also depend on the gravity of the allegation. Suspension for gross misconduct, such as violent behaviour, is much more likely.
All the basics - the complaint, the investigation, the employee's defence, any correspondence, grievances raised, a record of the disciplinary meeting, if an appeal was made and how it was decided, and developments following the appeal.
For more examples, go to page 15 of Discipline and grievances at work: The Acas guide [1Mb].
Give a copy of meeting minutes to the employee, but you don't have to include the information where a witness needs to stay anonymous.
Remember, these records are confidential and should be kept in a safe place.
If you don't keep a written record, details are more easily challenged and open to misunderstandings which are only likely to make matters worse.
Also, you need evidence in writing, as well as being presented verbally. Details of a disciplinary matter are vital on an employee's personal file. And written records of past disciplinary matters are useful for ensuring that new and similar cases are dealt with consistently.
Only have a disciplinary meeting if your investigation finds enough evidence to suggest disciplinary action might be needed.
Ensure all the facts are available, with specific examples of the problem, written witness statements, and any other evidence or relevant records, may be on absence or sickness.
Arrange for someone not involved in the case to take notes at the meeting and be a witness of what was said.
Both employer and employee should say which witnesses they intend to call.
Prepare for the meeting thoroughly, planning: how you will introduce the meeting; the procedure the meeting will follow, including allowing the employee to call witnesses and submit witness statements; and questions you need to ask.
Also, ensure arrangements for the meeting take account of language, communication and access needs of those attending.
For more on preparation, go to page 21 of Discipline and grievances at work: The Acas guide [1Mb].
Have the meeting soon, but when depends on how complicated the allegation is and how long you think it would take for the employee to prepare their defence.
Acas uses the word 'reasonable', as in judging whether someone has behaved reasonably, or holding a disciplinary meeting without unreasonable delay. But how do you determine what is reasonable?
Look at all the circumstances of the situation and weigh up the factors. If your judgement is based on rational, fair, sensible and unbiased thinking, an employment tribunal should view your action as reasonable.
A second test is to consider whether an outsider would consider your decision extreme or excessive. If you think they might, then so might a tribunal.
The employer should explain the allegation and go through the evidence gathered from the investigation.
This would be presented to the employee and their companion. The employer would call any witnesses and ensure any questions the employee has for witnesses are answered.
The employee should then set out their case against the allegation, calling witnesses, submitting witness statements, and asking questions and raising points about the evidence.
After the meeting, only a manager with the authority should decide on any disciplinary action or dismissal.
Ideally, the person chairing the meeting should be unconnected with the case and not the same person who conducted the investigation.
But, again, this may not always be possible in a small business. But whoever conducts the meeting must stay impartial.
For more on holding a meeting, go to page 18 of Discipline and grievances at work: The Acas guide [1Mb].
That is allowed, but mainly in circumstances where the witness is genuinely fearful of reprisals. Also, you should try to find other evidence that backs up what they're saying and think about why they're testifying. Have they had personal issues with this employee?
Also, while you should give the employee being investigated a copy of the anonymous witness's statement, remove from the copy the witness's name and any details which would identify them.
Yes. The employer will give the employee the facts from their investigation, including written evidence and witness statements with the letter inviting the employee to the disciplinary meeting.
It is only fair that the employee should do the same with their evidence, including witness statements and naming which witnesses they will be calling.
Any serious surprises - important new evidence - raised at the disciplinary meeting may mean it will have to be adjourned. The new evidence may need to be investigated before the meeting can resume at a future date.
Usually a fellow worker without a conflict of interest, a trade union representative qualified to accompany a worker or an official employed by a union who can get to the meeting.
However, some employees may have rights in their contract to be accompanied by a partner, spouse or legal representative.
For more on the companion, go to page 23 of Discipline and grievances at work: The Acas guide [1Mb].
They can put and sum up the employee's case, talk privately with the employee during the meeting, or respond to anything said at the meeting.
While the companion can answer questions for the employee, you have a right to insist the employee answers questions.
And a companion can only do what the employee says they can do. They cannot get in the way of you presenting your case.
For more on the companion, go to page 23 of Discipline and grievances at work: The Acas guide [1Mb].
If they can't come, the employee can offer you another time within five working days of the time you set so they can attend.
But should the employee need a translator or other help with communication, say a sign language interpreter for a deaf worker, it may be wise to be reasonably flexible.
I need to take disciplinary action against an employee, but they are off work ill. What should I do?
An employer can still take disciplinary action against them, but it needs to be handled sensitively.
You must take into consideration the nature of the illness - its seriousness, and whether it is stress or work related.
Also, you should get the employee's permission to ask their GP if the employee is well enough to attend a disciplinary meeting, or how long before they will be well enough to attend.
You may also want to consider consulting an occupational health provider.
If the illness is likely to be long term and the disciplinary matter is pressing, you may need to consider getting the employee to provide a written statement and asking them to nominate a representative to attend the meeting on their behalf.
Or, if the issue is work-related, the meeting could be held at a neutral location or the employee's home, if they agree.
But if the GP says they are not well enough and the disciplinary matter is not a major issue, the meeting may have to wait. It's a matter of striking a balance between how pressing the issue is and having consideration for the employee's wellbeing and recovery.
If it is a short illness, the meeting should be held when the employee returns to work.
You should be sensitive about employees' welfare. If a matter relates to disability or mental health and you want to know more, see Equality and discrimination, Advisory booklet - Health, work and wellbeing and Mental health .
Ask for an explanation why they didn't attend - they may have a valid one. And if they don't turn up for a re-arranged meeting, you again need to ask why.
There are a range of factors, from illness to the seriousness of the allegation, you may need to take into account.
Also, go to the question I need to take disciplinary action against an employee, but they are off work ill. What should I do?
For more, go to pages 20 and 71 of Discipline and grievances at work: The Acas guide [1Mb].
However, if they keep not showing up without a good reason, you can still hold the meeting without the employee. Minutes should still be taken, and you can make a decision on the evidence you've got.
And you may want to consider their absence as a separate conduct issue. For more on repeated absence, go to the Acas Advisory booklet - Managing attendance and employee turnover.
Take care to give enough time to assess whether it may be justified and be impartial.
Otherwise, if you make a snap decision in dismissing it, you could face a second grievance for failing to look into the first one if it turns out to be genuine.
Serious allegations will almost certainly warrant the adjournment of disciplinary proceedings until the grievance has been dealt with.
However, if the employee is simply mistaken in their claim, or over how the proceedings work, then you can carry on.
For more, go to the Discipline and grievances at work: The Acas guide. And for more on handling grievances, see Managing a complaint at work: A step-by-step guide, another online tool which is part of this series of guides.
Before the appeal, you should carefully consider whether you need to rehear any, or all, of the evidence from the first meeting, and recall witnesses, to arrive at a fair decision after the appeal.
At the appeal, the chair should explain how it will be conducted and the possible outcomes.
Ask the employee why they are appealing.
Pay particular attention to any new evidence and ensure the employee has the opportunity to comment on it.
Once the relevant issues have been thoroughly explored, summarise the facts and adjourn the appeal to consider a decision.
The same standards apply to trade union reps, but you may want to start discussing the issue early on with a trade union official, if the employee agrees to it. This may help to ensure the issue is not seen as an attack on the functions of the union.
Not just because of the charge or conviction.
What you can do is assess the effect on their ability to do their job and their relationships with you, colleagues and customers.
But justifying your decision to an employment tribunal can be difficult, unless the crime relates to their job.
For example, if they have been convicted of theft of money when they work in a money-handling role serving the public and when being trustworthy is a key part of their role.
For more, go to pages 35 and 36 of Discipline and grievances at work: The Acas guide [1Mb].
Ensure an employee is properly trained, and, where you can, offer them opportunities to develop.
Otherwise, if an employee makes mistakes, and you try to discipline him, he may respond by saying the training for the job has been inadequate.
While this is a common worry, it should not be your main concern. What you should really be asking is: What happens if I don't do anything about it? Or, what happens if I deal with it badly?
The answer to both questions is that the issue is only likely to get worse - and even cause additional problems. Also, staff may question your ability to lead - and colleagues usually appreciate management tackling poor conduct or performance effectively.
Handling sensitive issues such as discipline requires the skill of knowing how to conduct a challenging conversation. For more, go to Challenging conversations and how to manage them .
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If you want to find out more visit Code of Practice on Disciplinary and Grievance Procedures and Discipline and grievances at work: The Acas guide.