Even in well-run businesses, it may sometimes be necessary to take disciplinary action against employees.
Therefore it's crucial that you have written dismissal/disciplinary rules and procedures. If problems do arise, you can deal with them using your procedures rather than let them fester into resignations and/or tribunal claims.
Your rules and procedures must:
In Northern Ireland, this requirement is satisfied if they comply - at the very least - with the statutory dismissal/disciplinary procedures. The Labour Relations Agency hasthat can be used as an aid but it does not replace the statutory procedures.
An unreasonable failure to meet either of these requirements may result in extra compensation for the employee if they succeed in a tribunal claim.
Draw up rules to set the standards of conduct and performance required. Make sure your rules are fair, clearly written and reflect the needs of your business.
Rules can help:
A disciplinary procedure is the means by which rules are observed and standards are maintained. The procedure should be used primarily to help and encourage employees to improve rather than just as a way of imposing punishment. It provides a method of dealing with any apparent shortcomings in conduct or performance and can help an employee to become effective again. The procedure should be fair, effective, and consistently applied.
The rules should not discriminate on the grounds of age, disability, gender reassignment, marriage or civil partnership, pregnancy or maternity, race, sex, sexual orientation and/or religion or belief (England, Wales and Scotland) or religious belief or political opinion (Northern Ireland).
You cannot expect to list everything that might lead to disciplinary action, but you could cover:
The rules should also set out behaviour which will be treated as gross misconduct - misconduct judged so serious that it's likely to lead to dismissal without notice. It's important to give examples of what will count as gross misconduct, such as:
Make it clear in your disciplinary procedure that the list is not meant to be exhaustive. What counts as gross misconduct varies depending on the type of business and the role of the employee.
If an employee's performance or conduct does not meet your standards, you should try to help that employee to improve. Have an informal discussion with the employee as soon as problems arise, explain the problem and agree actions with them. This kind of informal chat is not part of any formal disciplinary procedure.
If the employee's poor conduct or performance persists, you may have to take formal disciplinary action.
When applying formal procedures, employers should always bear in mind principles of fairness. For example, employees should be informed of the allegations against them, together with the supporting evidence, in advance of any disciplinary meeting. Employees should be given the opportunity to challenge the allegations before decisions are reached and should be provided with a right to appeal.
Good disciplinary procedures should:
An employee should not be dismissed or otherwise disciplined solely because he or she has been charged with or convicted of a criminal offence. The question to be asked in such cases is whether the employee's conduct or conviction merits action because of its employment implications.
Where it is thought the conduct warrants disciplinary action, the following guidance should be considered:
In some cases, the nature of the alleged offence may not justify disciplinary action – for example, off-duty conduct which has no bearing on employment – but the employee may not be available for work because he or she is in custody or on remand. In these cases, employers should decide whether, in the light of the needs of the organisation, the employee's job can be held open. Where a criminal conviction leads, for example, to the loss of a licence so that continued employment in a particular job would be illegal, employers should consider whether alternative work is appropriate and available.
Where an employee, charged with or convicted of a criminal offence, refuses or is unable to cooperate with the employer's disciplinary investigations and proceedings, this should not deter an employer from taking action. The employee should be advised in writing that, unless further information is provided, a disciplinary decision will be taken on the basis of the information available and could result in dismissal.
Where there is little likelihood of an employee returning to employment, although there might be an argument that the employment contract comes to an end automatically, it is normally better for the employer to take disciplinary action.
An employee who has been charged with, or convicted of, a criminal offence may become unacceptable to colleagues, resulting in workforce pressure to dismiss and threats of industrial action. Employers should bear in mind that they may have to justify the reasonableness of any decision to dismiss and that an employment tribunal will ignore threats of, and actual industrial action when determining the fairness of a decision. They should consider all relevant factors, not just disruption to production, before reaching a reasonable decision.