Discipline

Why Have Discipline rules?

Many employers believe that employees should know what is expected of them and particularly small to medium sized enterprises (SME’s) often feel there is no need for formal rules. This is actually against the law, whilst in practice they may not be needed the majority of the time, what about when things go wrong?

What can go wrong?

Not all employees are self-motivating, or, a previously good employee can become disenchanted, or personal circumstances result in a drop off in performance standards. Problems can include:

• • Ignoring or inappropriately challenging management rules or instructions

• • Deliberately working to a poor standard – negligence

• • Being persistently late

• • Behaving badly towards colleagues or in more serious cases

• • Bullying or discriminatory behaviour

• • Fraud

• • Theft

For more information on disciplinary misconduct or gross misconduct see our handbook.

Ultimately you may have to defend a Tribunal claim. It is worthy of note that you don’t have to dismiss someone to have a claim taken out against you; an employee can make a number of claims whilst still employed for instance, discrimination, or a Protected Disclosure claim (commonly known as Whistleblowing). These claims may be added to an unfair dismissal claim (and frequently are) and you, as the employer, may need to show that you have not discriminated. It is difficult to prove a negative and to do this you will have to show that you have followed proper disciplinary procedures and that was the real reason for the dismissal. Clear disciplinary rules and procedures mean that everyone knows where they stand, and ensure that employees are treated fairly, and just as importantly, are seen to be treated fairly as this is vital for morale and productivity. For more information on the whole process go to our discipline guide or handbook.

The Legal Position

All employers are required by law to have a written disciplinary procedure and to ensure it is communicated to, and made readily available to, employees and implemented appropriately. You must also tell them the name of the person that they should appeal to if they are unhappy about a disciplinary or dismissal decision. You can either include this in their written statement of employment or contract or refer in the statement to where they can find the information, eg in a company handbook. If you fail to provide this information to an employee and they succeed in an employment tribunal claim against you, they could be awarded compensation of at least two weeks’ pay and up to 4 weeks at the tribunal’s discretion.

Penalty Costs

The compensatory award for an unfair dismissal may be increased to up to 25% where an employer has failed to reasonably follow the ACAS Code of Practice. Similarly, the award may be reduced to up to 25% for the employee’s failure to reasonably follow the Code of Practice.

Contractual status of disciplinary procedures

If you include your full dismissal and disciplinary procedures in the statement of employment or contract they become a part of the contractual terms. In this case, if you do not follow them exactly an employee could claim breach of contract and you would almost certainly lose a tribunal claim on procedural grounds. In addition, as contractual terms cannot generally be changed unilaterally, you will lose the ability to change the procedures in response to the needs of the business.

Fair Dismissal

As stated earlier, the biggest risk for an employer is to lose a claim on a procedural fault. Employment Tribunals are obliged to take into account the statutory ACAS Code of Practice in deciding if a dismissal is procedurally unfair (except for redundancy dismissals, which have a separate Code or non-renewal of fixed term contracts). The Code provides only a basic framework and it may not be sufficient to ensure a fair dismissal as the Tribunal must decide if it was fair and reasonable to dismiss in all the circumstances (this applies to all dismissals including redundancy and non-renewal of fixed term contracts). ACAS have also produced a guide for employers which has more information, which does not have statutory application so a failure to follow it will not automatically result in an unfair dismissal whereas failure to follow the Code of Practice almost certainly will.

However, even following the ACAS guide will not necessarily protect you from an unfair dismissal claim succeeding as it does not really help on the actual practical problems in investigating, preparing for and conducting and controlling a disciplinary meeting or how to make a fair final decision.

HR Adviser can provide this information based on the knowledge and practical experience of people who have actually conducted disciplinary meetings over many years. It is almost like having your own expert HR Director to advise you.