There are two primary reasons why you may need to take an employee through the disciplinary procedure. One is capability, the other is misconduct.
Capability arises when an employee is not able to do his job, whether it is due to an ill health problem or a lack of competence. Conduct arises when an employee won’t do something or has elected to do something wrong. For example, lateness, theft, rudeness etc. The list is extensive and what is considered to be misconduct will depend on what you find to be unacceptable behaviour within your business.
The ACAS code sets out the process that should be followed when dealing with discipline. All company discipline policies will follow the basic principles set out in the code. The ACAS code is also accompanied by a guide that sets out best practice in these circumstances. Although the guide doesn’t have to be followed a tribunal will frown upon a case that does not follow this and any award may be adjusted to reflect this.
Whenever a disciplinary process is being followed it is important to deal with issues fairly. The ACAS Code of Practice sets out the following points.
- Employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions.
- Employers and employees should act consistently.
- Employers should carry out any necessary investigations, to establish the facts of the case.
- Employers 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.
- Employers should allow employees to be accompanied at any formal disciplinary or grievance meeting.
- Employers should allow an employee to appeal against any formal decision made.
In the case of James v Waltham Holy Cross  Sir John Donaldson established the general principles of fairness. You are expected to follow these when a performance issue arises.
- A proper investigation of the matter will take place to identify the problem.
- The employee will be given a warning of the consequences of failing to improve.
- The employee will be given a chance to improve.
Unless the matter is really serious, you should attempt to deal with a discipline matter informally in the first instance. This is particularly true in cases of performance as an employee may not know that he is underperforming unless you bring it to his attention. If you tell an employee that he is not performing you need evidence to support what you are saying. What are the employee’s targets? What is he currently achieving?
- The start of the informal process is to take the employee to one side privately and put this to him.
- Explain your concerns, compare accrual performance to the standard required and provide evidence that shows there is a problem.
- Ask about the reason for the capability matter and find out if there is an underlying reason.
- Agree together what the targets are and how the employee will reach these targets. The targets given must be reasonable. Find out whether additional support or training are needed.
- Ask for the employee’s commitment to meet and maintain these standards.
- Plan in a date and time to review the situation. Ten-12 weeks is the usual timeframe, but what is reasonable will depend on the circumstance. If the employee needs training and support it may take a few weeks to a few months depending on the level of training or support needed because you may need to have incremental targets.
- Tell the employee that you reserve the right to deal with the matter formally if there is no improvement.
- Always write to the employee to confirm what was said and agreed so you have a record of the conversation.
This same process should also be followed for minor matters of misconduct, for example, lateness. In cases of misconduct I would expect to see an immediate improvement.
NB Managers often get stuck in the rut of offering training to combat poor work performance. Investigate. If it’s a training need, then training is fine. If it’s not (and the problem could be caused by all manner of things),the matter will not be addressed. Don’t make assumptions about it!
We describe this as informal but structured guidance. Only use it for minor infringements and only have one or two such discussions. If it doesn’t work, move to the formal process.
Without following a fair procedure and allowing an employee a chance to improve, you risk any later dismissal being unfair or a claim of constructive unfair dismissal if the employee has the necessary qualifying service.
We provide HR support for all sorts of clients, both large and small. If you want help sorting out poor performance or misconduct problems, get in touch. Call 0845 644 8955 or send us an email.
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