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Employers do, unfortunately, sometimes have to take disciplinary action against employees, particularly if it is not appropriate to attempt to resolve the issue informally or an informal attempt has not been successful.
Most organisations have their own disciplinary procedure which specifies how many warnings will be given prior to dismissal. However, the Acas guidelines for dismissal and disciplinary procedures recommend that these steps are followed as a guide:
Firstly, you should always seek to resolve any disciplinary issues in the workplace informally. The Acas Code of Practice on discipline advises that ‘a quiet word if often all that is required to resolve an issue’. However, where an issue cannot be resolved informally then it should be pursued formally. We advise that you should consider using an independent third party to help resolve the problem. In some cases, an external mediator (someone who is not involved in the disciplinary issue) can be a breath of fresh air!
Dealing fairly with formal disciplinary action as per the Acas Code of Practice on discipline issues includes a number of elements:
• You should carry out any necessary investigations, to establish the facts of the case.
• You should inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made.
• Always allows the employee the right to be accompanied at any formal disciplinary or grievance meeting.
• Employees have the right to appeal against any formal decision made.
As this can be a complex area, if you are an employer please do not hesitate to contact us for more details on dealing with disciplinary issues.
Our employee was asked to attend a disciplinary meeting today but has just phoned in sick. We know she is not sick, what can we do?
We would advise that if an employee is absent for reasons of sickness you should postpone the meeting to a date within the next five working days. If they are still absent for sickness reasons at the time when the postponed meeting is due to be held, then they may submit written representation and appoint a representative in possession of the full facts to attend on their behalf (if they so wish). This should be a colleague or accredited trade union representative. If the employee does not attend or submit written representation, the hearing can go ahead in their absence and a decision can be made on the basis of the information available. Remember that the employee's right to appeal will not be affected.
Why does a verbal warning have to be written?
We often find that the first stage in a disciplinary procedure is called a verbal or oral warning (the term verbal and oral is misleading and as a result has confused many Line Mangers as it is a formal part of the disciplinary procedure). An employee needs to be aware that this verbal warning is not just another 'chat'. We would therefore recommend that it should be made clear at the outset (ideally in writing before the meeting takes place!) that the meeting may lead to disciplinary action.
Can I issue an employee with a final written warning without issuing previous warnings?
There may be as many stages to the disciplinary procedure as an employer wishes, but as a minimum, any procedure you draw up should have at least two or possibly three stages prior to dismissal. If your procedure allows it, the final written warning may be used at the first stage in the disciplinary procedure for serious acts of misconduct. For performance related warnings you must start at stage 1 of the process and work through each level accordingly.
I know that employees have the right to be accompanied at their disciplinary hearing; can they bring their solicitor?
Employees only have the statutory right to be accompanied by a colleague, staff rep or accredited trade union rep. By allowing any other persons a precedent could be set for other employees to request the same. A disciplinary hearing is an internal meeting and therefore, external visitors do not have the right to participate.
In the cases of employees where English is not their first language or vulnerable employees (i.e. under 18's, those with learning difficulties etc), you may wish to allow an appropriate external person such as a translator or a parent / guardian to accompany them to the meeting.
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