Knowing what to do when an employee’s conduct or performance is of concern can be tricky for employers. If an employer seeks to discipline an employee for misconduct or poor performance, there are certain legal requirements that must be followed. If employers fail to follow these procedures employees could raise claims against them in the employment tribunal / civil courts. This could result in the employer having to pay compensation to the employee or reinstate them if they have been dismissed. There are two criteria that employers must comply with before taking disciplinary action against an employee. These are:
- a fair procedure; and,
- a fair reason for the action taken.
This article will set out what procedure employers should follow in disciplinary situations and what level of action can be taken.
What is the purpose of disciplinary proceedings?
Disciplinary procedures are commonly considered to be a way of punishing employees for poor behaviour or performance. In fact they should be used primarily to help and encourage employees to achieve required improvements in behaviour or performance. They provide a method of dealing with any shortcomings in conduct or performance and can help an employee to become effective again.
What is a fair procedure?
The ACAS Code of Practice requires employers to follow a minimum procedure when handling disciplinary situations. Your own policy may be more enhanced, in which case, you should follow that. You cannot however do anything less than required by the ACAS Code of Practice. This is because Employment Tribunals will always expect an employer, regardless of the size of the business, to have minimally followed the ACAS Code of Practice.
What happens if you fail to comply with the ACAS Code of Practice?
If an employer does not follow the ACAS Code of Practice when taking disciplinary action, there are 3 potential consequences. These are:
- any action taken against an employee will not be recognised by law. It will be of no value if the employer seeks to rely on it in future;
- an employee with two years’ service or more (one year in Northern Ireland) could resign and claim “constructive unfair dismissal” against the employer; and,
- if the employee is dismissed or resigns and claims unfair or constructive dismissal, the dismissal will be unfair. Any compensation awarded to the employee can be increased by up to 25% for the employer’s failure to follow the ACAS Code of Practice.
Informal Action
If the employee is accused of minor misconduct or unsatisfactory performance, it may be appropriate to deal with it “informally”. This involves having a meeting with the employee to identify the issue of concern and thereafter issuing a “letter of concern”. This is not considered to be “disciplinary action” in itself. The letter should however state that if the conduct or performance does not improve, formal disciplinary action may follow. There is no requirement to follow the disciplinary procedure in relation to informal action.
