No matter how hard you try, workplace behaviour can sometimes give rise to banter and bad behaviour. Policing how people behave can be challenging but it need not be difficult. It takes strong policies and determined management, with the confidence to discipline staff if and when its needed.
For those new to HR or people management, tackling unacceptable workplace behaviour and bringing formal disciplinary action against work colleagues can seem like a daunting prospect. Planning investigations, reviewing evidence, structuring hearings - all these things can seem a touch intimidating, especially if you haven’t done it before.
This is why Clarion was delighted to host an interactive Disciplinary Workshop, to provide top tips on both the legal issues involved in disciplinary hearings, as well as the best ways to handle workplace behaviour issues and the human side of the process.
The Disciplinary Workshop is part of our HR Breakfast Club, a networking and educational community created by Victoria Clark, a Senior Associate in Clarion’s Employment Team, and a passionate advocate for professional learning and development. The Breakfast Club programme for 2019 features five different training sessions on highly relevant topics – including the Disciplinary Workshop - for HR professionals and those who are new to managing people.
We thought it would be useful to share some pointers from the Disciplinary Workshop session.
To protect yourself from Employment Tribunal claims, it’s vital, when arranging a disciplinary hearing, that you keep in mind the following key principles:
- Be reasonable,
- Be thorough and
- Be open-minded.
Process, process, process
The best way to ensure procedural fairness is to use the ACAS Code. While not legally binding, the Advisory, Conciliation and Arbitration Service (ACAS) has developed this code that encourages fairness and transparency through best practice procedures. In fact, the Tribunal will take the Code into account when considering relevant cases, so it makes sense for the employer to do so too. And if a Tribunal feels that an employer has unreasonably failed to follow the guidance set out in the Code, they can increase any awards made by up to 25%.
At disciplinary hearings, the burden of proof lies with the employer to demonstrate that the outcome was fair and reasonable. This means that taking detailed and consistent notes is really important; your notes are your evidence of how you approached the process, from start to end, and so need to be thorough and complete.
You first need to undertake an investigation, which needs to be thorough, impartial, approached with an open mind and carried out by someone who won’t be involved in any later disciplinary hearing. It’s important that the investigation doesn’t come to any conclusions about the employee’s guilt – it’s not about making a judgement call, it’s about collecting facts and recommending a way forward.
Once the investigation has occurred, and if there’s a case to answer, then a disciplinary hearing should be arranged promptly and an invitation sent to the employee, outlining exactly what they are accused of, referencing the disciplinary policy, the evidence against them, who will be acting as the disciplinary officer at their hearing; the date, time and location of the hearing; and the possible sanctions that they face. The letter needs to be sent out at least 48 hours before the hearing is to be held. It’s important that you are really clear about the allegations they face and why it’s a problem.
The letter should also explain that the employee can be accompanied by a colleague or trade union representative, to support them. The companion can ask questions, address the hearing and sum up what’s been said, but they cannot answer for the employee or be seen to put words in their mouths.
It’s particularly important that whoever chairs the disciplinary hearing takes onboard the key principles: being reasonable; being thorough and being open-minded.
At the disciplinary hearing – being reasonable
The chair should introduce the attendees, make clear their roles and summarise the allegations. They must take care to listen closely and carefully to everything that’s said and should take detailed notes to provide a record of what was asked, answered and understood.
The employee should also have a fair opportunity to put their case forward, ask questions themselves and provide an explanation for any allegations against them.
Chairing the hearing – being thorough
Whoever is chairing the disciplinary hearing should make sure that they don’t rush their way through it. The hearing could represent the possible end of someone’s employment and it’s important that the chair comes to the most considered decision they can. When they ask questions, it might be best to start broad and then test the details to get to the heart of what happened.
Making a judgement call – being open-minded
It’s important that the chair remains impartial and isn’t seen to prejudge the situation or the employee in question. This is why the chair should be a manager or other senior figure who has not been previously involved in the matter, either as an investigator or witness. The chair also shouldn’t express any view about the outcome at the hearing until they’ve considered the employee’s comments and all the evidence. If any new evidence is raised, adjourn to complete further investigation before a decision is reached.
Once a decision has been made, a letter confirming the outcome should be sent to the employee. It should confirm and explain the findings for each allegation, confirm the disciplinary sanction imposed and give the reason for it.
The sanction should fall into “the band of reasonable responses”, which might range from no action through to dismissal without notice and everything in between.
The outcome letter should also confirm any mitigating factors considered, such as remorse, length of services, personal issues that may have impacted their performance, or pressure of the job. Finally, the letter should outline the employee’s right to appeal.
If an appeal is requested and granted, it must be handled in the same way as the main investigation and the watchwords are, as always, ‘be reasonable’, ‘be thorough’, and ‘be open-minded’.
Come and join us!
If you like the sound of the HR Breakfast Club, then why not come along to our next event. It’s all about TUPE and change management, cutting through the legal jargon and helping you manage TUPE projects more confidently. It’s being held on Thursday 26th September at the Clarion offices and we’d be delighted to see you there, please email Laura Courbet if you would like to attend the event. Even if you haven’t attended any previous HR Breakfast Club, we’re always happy to welcome new faces.
Disclaimer: Anything posted on this blog is for general information only and is not intended to provide legal advice on any general or specific matter. Please refer to our terms and conditions for further information. Please contact the author of the blog if you would like to discuss the issues raised.