All businesses, whatever their size, will at some point need to carry out disciplinary procedures and consider dismissals. For small to medium sized businesses, who usually won’t employ in-house HR experts, having effective systems and processes in place is essential.
Nobody likes having to discipline a member of staff, but the key is to be prepared should you need to do so.
First things first
The best way to approach this sometimes thorny aspect of people management is to have a written disciplinary procedure. This is a company policy that you can share with all new starters as part of their induction so they are clear from the outset on what actions constitute misconduct or gross misconduct and the processes you will carry out to deal with these issues. It is also advisable to outline what your response would be to different types and levels of misconduct in this policy.
This doesn’t have to be as complicated as it might sound and legal services companies like James Legal can help you put a policy in place suitable to your business needs.
Documentation is key
‘Disciplinary action’ covers a range of options including:
- Investigations so that you can establish a fair and balanced view of the facts relating to any disciplinary allegations against an employee, before deciding whether to proceed with disciplinary action
- Disciplinary hearings – a formal meeting is held to go through the issues and evidence, allowing the employee to have their say and an opportunity to defend themselves
- Written warnings – depending on the outcome of the disciplinary hearing, where a letter is issued to the staff member to warn them that further action will be taken (potentially leading to dismissal) if the problem continues.
When carrying out any disciplinary procedures, documentation is absolutely critical. Every single stage of action taken should be recorded in a written note that is kept on the employee’s file. If an employer feels that things have deteriorated and dismissal is required, an employer puts themselves at high risk of a claim against them if they can’t show that they have carried out a fair process that led to the dismissal. If an employer is ever taken to the employment tribunal the “paper trail” is their vital evidence.
Sara Brown, employment expert from James Legal, explains: “It’s about building a paper trail and being able to demonstrate what was discussed and agreed. Keep clear notes of any meetings. They don’t have to be signed by all parties but it would be wise to do so to demonstrate everyone involved agrees it is an accurate record.”
She added: “Should you end up at a tribunal, the judge will take into account the size of your business and won’t expect you to be an HR expert, but they will expect you to have taken a diligent approach to your paperwork and be able to produce the evidence to back up your decision-making.
“We fully understand that you are focused on running your day-to-day business, but getting the processes and paperwork in place can save time and money in the long run. On average it costs between £10,000 and £15,000 to defend a tribunal claim, and ultimately it’s up to the tribunal judge to decide whether your actions were reasonable, so it is in the interests of you and your business to ensure your case is as clear as possible.”
Five key steps
Here are five steps for all businesses to follow as soon as a staff conduct issue has been flagged.
- Establish the facts.
Don’t delay in carrying out your investigations and collating your evidence.
- Keep the employee informed.
The employee should be kept fully informed at each stage of the disciplinary process.
- Hold meetings giving the employee an opportunity to have their say.
Sufficient notice of disciplinary hearings should be provided and the employee should be given all the evidence against them with sufficient time to prepare in advance. It is important that employees have a fair and reasonable opportunity to defend themselves. The process should not be rushed.
- Take time to decide on a course of action.
Generally, it is not advisable to decide on the outcome at the end of the hearing. Take the time to weigh up the facts and what has been discussed at the hearing. Decisions should be set out in writing.
- Provide an opportunity to appeal.
Sara said: “Going down the disciplinary route with a member of staff can be like walking a legal tightrope. Take a belt and braces approach and seek advice if you’re unsure what to do.”
If you’re in business and any of the above leaves you thinking you could do with some help, don’t hesitate to get in touch with James Legal for a free audit of your current employment policies via (01482) 225566 or firstname.lastname@example.org