Wrigleys’ Essential Employment Guide - The Disciplinary Process Part 4

Part four – Toolkit

Parts one to three of this guide are designed to help employers of all sizes and sectors fairly navigate a disciplinary process. 

Ideally, no employer would need to deal with employee conduct issues, but the reality is that all employers are likely to have to do so.

Disciplinary procedures – as well as a wide range of other internal process and measures designed to help manage staff – may not be the priority for a new employer organisation, which may instead be focussed on the core purpose of the business. Crucially, getting disciplinaries wrong will lead to claims and liabilities so it is very much in the employer’s interest to set up suitable disciplinary process systems to try and prevent this.

At a bare minimum employers are expected to have a disciplinary policy in place and to follow the ACAS Code of Practice on disciplinary and grievance procedures. If you haven’t already got your own disciplinary policy, subscribers to Wrigleys HR Response service have access to a template policy.

That is why, whilst it might seem less of a priority than other matters, even start-up organisations of a handful of staff should make it a priority to get processes and procedures in place. These will often grow organically with the employer, adapting over time to reflect changes in the law, the employer’s values, culture and experience.

Below we set out a structure that can be adapted to fit any organisation but which is framed to best protect your organisation by seeking to get as much of the process right as possible.

Structure of a disciplinary process

When creating a disciplinary structure it is important to get the basics right.

Three main stages

A disciplinary process needs to deal with 1) investigations into allegations to find evidence, 2) that evidence needs to be weighed to decide if allegations are true to decide an outcome and 3) that outcome is subject to the right to appeal.

Individuals need to be treated fairly throughout this process. They have certain rights and should expect that an employer will try to avoid bias and predetermining the outcome by ensuring the decisions are based on the evidence presented, on which the individual is invited to submit their own evidence or respond to evidence presented.

At an employer progresses through the stages, the manager overseeing the subsequent stages should ideally be someone more senior than the manager who oversaw the previous stage, or at least as senior as the manager at the previous stage.

As in parts one to three of this guide, we recommend that:

• Part 1) the investigation is overseen by the individual’s line manager – they are often best placed to do this and gather evidence and assess the reliability of this as they likely know the key people involved

• Part 2) the disciplinary decision making is ideally carried out by another manager who is at least as senior as the investigator and who is otherwise not involved/ does not know of the misconduct or the parties involved

• Part 3) an appeal will ideally be overseen by someone at least a senior as the manager at part 2) who is also not involved in the allegation or disciplinary process up to appeal stage and who does not now the parties involved

As noted in the guidance, this can be difficult for small organisations or even those with a relatively ‘shallow’ management structure. However, it is helpful to identify suitable positions for each part of the process and ensure those position understand the importance of confidentiality (see below).

It is important that the key decision makers in the disciplinary process understand that they have the freedom to draw their own conclusions, provided this is done within the framework of the disciplinary policy and a fair process. This includes employers empowering decision makers to not uphold allegations and/ or to be unafraid to uphold appeals without fear of reprisals or criticism.

If your organisation will struggle to separate out the managers required from parts 1) to 3) you might consider the need to have the line manager deal with parts 1) and 2) and allow for a superior to deal with part 3). It is also worth considering having third-party HR consultant contacts who can be brought in to lead on aspects of the process.

Formal and informal stages

Part 1) investigations are considered the ‘informal’ stage of the process, though they may feel very formal to the people involved. The distinction is to communicate to the employee that no decisions about their employment are being made at this point – the allegations are merely being investigated and evidence is being sought. The employer is not ‘formally’ accusing the employee of anything at this stage.

This is important because so far as decisions are not being made about the employee’s job – such as whether they will get a warning or dismissed – the employee is not entitled to be accompanied to meetings even if they form part of the overall disciplinary process.

When the decision to proceed to a Part 2) hearing is taken, the process becomes ‘formal’ and the employee is entitled to be accompanied to meetings.

Confidentiality

Ideally disciplinary allegations should be assessed by a manager who has not had any involvement in the process so far or knowledge of the employee accused of wrongdoing. This is so that the managers making decisions about the employee’s employment – and potentially about whether to dismiss them or not – is led by the evidence and not wider factors such as personal relationships, gossip or bias.

This can be hard for many organisations to achieve – management in small to medium-sized organisations often know most staff and may overhear office gossip or even come to know some details about the allegations against someone they later have to make decisions about under a disciplinary process.

That is why it is advisable for employers to make clear to all parties that disciplinary proceedings should be subject to strict confidence, including any witnesses, managers or note-takers involved. Confidentiality should feature prominently in an employer’s disciplinary policy and the point should be repeatedly made in letters and at meetings. Breaches of confidentiality can themselves be misconduct and subject to disciplinary action and it may be necessary to act on breaches of confidentiality to enforce this and/ or establish a professional culture around disciplinary action.

Documents

The cornerstones of a disciplinary policy are:

• The employment contract

• The disciplinary policy

• Any ancillary policies setting out relevant standards (e.g. staff code of conduct, anti-bullying and harassment policy, or data protection policy)

• Templates:

o Letters inviting staff to informal investigation meetings

o Investigation meeting planners / forms

o Investigation report

o A letter to invite the employee to a formal disciplinary hearing

o Disciplinary meeting directions/ forms

o A disciplinary outcome letter

o A letter inviting the employee to an appeal hearing

o An appeal outcome letter

The employment contract

Employment contracts are key as they are a good way of drawing the attention of staff to their duties and obligations.

Breach of contractual terms by employees may be actionable as disciplinary matters. For example, employees for organisations who have access to or control over the organisation’s trade secrets that are key to the employer’s survival should have suitable confidential information clauses in their contract which, if breached, could lead to disciplinary action.

Other key aspects can also be incorporated or flagged to an employee via their contract – this might be the employee’s duties or obligations in respect of the data protection policy to not misuse or cause a breach of personal data which may be treated as a disciplinary matter.

As noted in Part 1 of this guide, it is also very useful to have a contractual right to suspend an employee on full pay if they are subject to a disciplinary investigation. Contracts should also provide for pay in lieu of notice and potentially garden leave to provide employers with flexibility if dismissal is deemed an appropriate outcome.

Policies

The central policy is the disciplinary policy. This should act as a guide to your disciplinary process, setting out the three stages of a disciplinary process (as noted above) and the ground rules. Policies typically provide examples of what will be treated as misconduct and gross misconduct by the employer and might also reflect the organisation’s values and principles, noting that a failure to maintain them may result in disciplinary action.

The disciplinary policy may also refer to other policies and how breach of them may be dealt with as misconduct or gross misconduct. For example, breach of the data protection policy which puts personal data at risk could be an example of misconduct and knowingly or carelessly causing a data breach of personal sensitive information may be an example of gross misconduct. Employers might also consider including other policies such as equality and diversity, or dress codes, into this structure.

What is recommended is that each policy is expressly stated at the top to be non-contractual. As noted above, this is so that the employer is allowed some flexibility to deal with the procedures set out within them and afford a degree of adaptability to the specific circumstances.

For example, a very complex or technical allegation may take much longer to investigate or decide than wording in a policy that might say outcomes will be delivered within a specified number of days of a disciplinary hearing. This can put employers in a very difficult position - if that term in a disciplinary policy was contractual, the employer risks being in breach of contract if they can’t deliver the outcome within the stated timeframe, but rushing a decision to meet that contractual obligation may result in claims for unfair dismissal, if dismissal is the decided outcome.

Policies may also clearly set out who will undertake each part of the disciplinary process and may nominate specific roles within the organisation to hear formal disciplinary cases and appeals. It is also advisable for disciplinary policies to set out what happens if a senior manager who might otherwise play a role in a disciplinary policy is the person about whom an allegation has been raised.

Policies should also be regularly reviewed to ensure they are kept up to date and reflect lessons learned through the lived experience of cases the employer deals with over time.

As with the contract, it is helpful if a disciplinary policy sets out the employer’s right to suspend an employee under disciplinary investigation.

Template documents

Whilst no two disciplinary matters are likely to be the same, it may be helpful to create key template documents that can be used by those undertaking the process to help with consistency.

This might include a template letter to ensure key paragraphs are included, such as letting the employee know of their right to be accompanied (if relevant), reminders to ask if adjustments are needed for meetings to address mental or physical conditions and so on.

It may also help to have a template investigation report which will help the investigation manager to clearly set out the background and key dates, what the allegations are, which policies these come from what evidence supports/ goes against the allegation and so on.

Subscribers to our Wrigleys HR Response service have access to key template documents, which are a good starting point and can be adapted to better fit an employer’s individual circumstances.