Disciplinary Hearings

Conduct vs Capability

Disciplinary procedures are generally designed to deal with misconduct and may be inappropriate for capability issues.

Examples of where it is not appropriate for the employer to discipline:

• A long serving employee who has been absent for a lengthy period of time due to a genuine illness

• An employee who is not coping with his or her work load where they have been given expanded duties following a downsizing exercise.

• A newly hired employee who is not meeting their performance targets but who is awaiting skills training.

Examples of where it is appropriate to discipline:

• Were a member of staff who is under performing because of a negative attitude to work

Appropriateness of Disciplinary Action

The difference between what is not appropriate and what is appropriate for disciplinary action is that the performance is within the individual's control. Thus, disciplinary procedures can be used where the poor performance is due to negligence, lack of application or attitudinal problems. The employer need to design a separate capacity procedure to deal with the other instances.

In any event disciplinary action need not be the only outcome of misconduct. An employer may also need to take account extenuating circumstances. For example an employer's investigation into an employee's poor timekeeping may reveal that the 'offender' is a previously satisfactory employee whose problems are connected with short term domestic circumstances. Therefore, the employer may decide the disciplinary action is inappropriate and instead may wish to agree a temporary change to working hours or to offer counseling.

This should not be seen as putting off the inevitable as the outcome is likely to be a much more positive one.

Disciplinary Rules

Disciplinary rules set the standard of behavior and conduct expected in the work place. Generally they cover areas such as:

• General conduct (i.e. adhering to the companies dress code)

• Security (i.e. submitting to a request to search desks and lockers)

• Health and safety (i.e. utilizing appropriate safety equipment)

• Discrimination (i.e. making promotion decisions based only on the ability to do the job)

• Use of company facilities (i.e. Using company provided mobile phones for business calls only)

• Time Keeping and Attendance (i.e. not tampering with clock card)

Gross Misconduct

You'll be aware that not all misconduct is of equal severity and lesser penalties, i.e. oral and written warnings are reserved for minor breaches so how will employees know which actions are likely to lead to their dismissal?

It is sensible to provide a non exhaustive list of those offences that will normally be regarded as examples of gross misconduct justifying summary dismissal.

Summary dismissal is dismissal without notice or pay in lieu of notice and it is only justifiable where the employee action is felt to be so serious that it goes to the root of the employment relationship.

Common examples of Gross Misconduct include theft, fraud, serious health and safety infringements, fighting, assault, bullying, harassment, discrimination, serious negligence, disloyalty, insubordination or serious breaches of company policies such as those on Internet usage.

Disciplinary Procedures

Disciplinary procedures provide guidelines for adhere to the disciplinary rules and set out the method for dealing with infringements. In summary they should allow for; the employee charged with misconduct to be informed in writing in advance, that a disciplinary hearing is taking place and the nature of the precise allegations.

A full investigation by an unbiased individual to establish the facts of the case is required.

The employee is to be given an opportunity to answer the allegations at a private hearing and to challenge any evidence which will be relied upon in reaching a disciplinary decision.

Those individuals conducting the disciplinary have to keep an open mind and not prejudge the case.

They should also allow for:

• Establishment of any mitigating circumstances.

• Detailed notes must be made at the time relating to all these matters.

• An adjournment should be granted to allow the employee time to consider the evidence, challenges, explanations and mitigation before arriving at a decision, of which the employee is then advised.

• A right of appeal against a disciplinary decision to, ideally, a more senior manager who is not previously been involved in the case.

NB: The overall aim of disciplinary procedures is to assist employees in improving their conduct, rather than providing the means for managers to dismiss employees lawfully.