A good, clear disciplinary policy will clearly explain the steps to be followed to conduct a fair and proper disciplinary process.
Ensuring staff have access to your organisation’s disciplinary policy and that any managers involved in disciplinary investigations and hearings are familiar and trained in its contents makes for a smoother process and can help protect your organisation from grievances and unfair dismissal claims.
A clear process reduces ambiguity during an already stressful time, provides information on what can be expected and spells out in advance any important (and legal) information such as timescales, deadlines and the right to be represented.
So, with a good clear policy setting out your process…… what can possibly go wrong?
Our HR Consultants here at Fusion, regularly support organisations with disciplinary matters and as such, they come across many of the common mistakes and pitfalls that can catch even the most well prepared of organisations out and potentially jeopardise the process. At best this can lead to delays, and reschedules, increasing stress for all involved and creating a bad impression. At worst, failure to follow a proper process may result in an employee bringing a grievance or unfair dismissal claim, resulting in more time, expense and reputational damage.
Below we have outlined some of the common mistakes….and how to avoid them.
- Don’t – forget to issue disciplinary packs in good time to everyone who needs them at the hearing.
This should include the Chair, all members of the panel (if a panel hearing), HR Consultant and the employee (who may request a copy for their union representative if applicable) and the management representative. For LA schools you will also need to give the opportunity for the LA to send a representative.
Do – ensure everyone involved in a disciplinary hearing has the correct information in good time.
Your policy may include timescales for submission of documents for both parties (if it does you need to follow them). It is also a good idea to ensure page numbers are used and clearly labelled appendices for ease of use at a hearing. Your HR Consultant can provide a suitable Investigation Report template and some guidance if needed.
- Don’t – appoint an inappropriate Chair or panel member(s)
The ACAS code stipulates that hearings should be heard by a different manager to the investigation officer, and the appeal by another manager. Where this is not possible please contact your HR Consultant for advice. You should ensure the Chair / panel member(s) were not involved in the case and that they also have authority under your policy to issue the potential range of sanctions.
Do – check this out in your policy in advance and check with your HR Consultant if in any doubt, in order not to breach your own procedure.
- Don’t cut short on time and allow some contingency should things run over. Tempting as it is to set a time limit in advance for a hearing, this should not be put in place without HR advice. In cases of serious misconduct it is advisable to let employees present for as long as they need to (or at the very least a “reasonable” timeframe). This can reduce grievances and appeals, claims of cases not fully being heard, potential perceived unfairness and having to reschedule the hearing.
Do – seek HR advice in advance if you feel you need to limit the time for which each side presents .Your HR Consultant can advise you as to whether this would be appropriate and if necessary help you word this stipulation in advance.
- Don’t involve HR in the disciplinary decision-making process (other than to address issues of consistency).
The decision on any sanction should be that of the Chair/ panel. Your HR Consultant will advise on correct process, the range of sanctions, relevant employment law and any considerations you should make including mitigating circumstances, any previous sanctions and precedents. HR involvement should not involve assessment of the employee’s conduct or credibility.
In case law Rhampal vs Department for Transport (2015), a number of amendments were made to the investigating officer’s draft report following HR involvement. When the sanction was subsequently raised from a final written warning to gross misconduct, this was found to point to the improper involvement of HR.
Do – ensure you access the advice of your HR Consultant at an early stage and ask them to support you at the hearing. You can call adjournments should you need any clarification or advice to ensure you are fully equipped with all the information you need as decision maker.
- Don’t – mix ‘fact finding’ with investigating and investigation with disciplinary procedures.
These are distinct and separate processes, however there may be a temptation to short cut (particularly where an employee admits guilt). However, cutting short or overlapping processes can lead to an unfair process and information being missed.
Do – restrict fact-finding to the very bare basics of what has been alleged – ‘who’, ‘what’ ‘where’, ‘when’ and any potential witnesses. This should be carried out as soon as possible but not stray into full investigation – which should only be carried out in line with your policy giving appropriate notice.
Do – ensure you keep the investigatory and disciplinary processes separate, even where there is an admission of guilt, there may be other matters to be investigated. You should not be tempted to issue a warning at the end of an investigation meeting, as this would be deemed unfair, does not meet the ACAS Code of Practice and would likely be overturned at any appeal.
Do – contact your HR Consultant for advice at any stage during the process. It is easier to put things right in the early stages of a process than later down the line.
- Don’t – forget to arrange an accurate note-taker for witness statements and to take minutes at disciplinary hearings
Do – ensure notes are verbatim. Witness statements should be signed and dated on each page. Hearings should be fully minuted, also noting any adjournments and their duration.
- Don’t – rush a decision. Particularly in cases where dismissal is a possible consideration. The length of time taken to reach a decision will be visible throughout the paper trail and helps demonstrate proper consideration where adequate time is taken.
Do – adjourn for the appropriate amount of time and reconvene to deliver your decision – and follow this up in writing with details of how to appeal. Your HR Consultant can advise on this part of the process.
Please contact your HR Consultant for advice and guidance on handling disciplinary matters on 01924 827869