Matters of discipline and performance management are governed by statute and the ACAS Code of Practice on Disciplinary and Grievance Procedures. The ACAS rules are not legally binding but offer set procedures to be adhered to, derogation from which may result in an employment case being decided against an employer.
In the course of employment, an employee may be subject to disciplinary measures, in reaction to misconduct or below par performance. At the conclusion of these measures, a performance review is the way in which an employer monitors the employee’s compliance with any warnings issued.
Common issues that can arise in the workplace are conduct, timekeeping, absence, health and safety and use of personal items during work hours. Where informal conversations between an employer and employee do not resolve these issues, an employer may have to resort to formally prescribed proceedings.
When disciplinary proceedings are initiated, the employer must inform the employee in writing, notifying them of:
- the allegations against them;
- the time, place and location of any prospective hearing; and
- the potential sanctions that could be brought.
The stages of proceedings are: (1) investigation; (2) disciplinary hearing; and (3) potential appeal.
An investigation into employee misconduct must be carried out by an impartial and independent party. In more serious circumstances, an employee can be suspended pending the outcome of an investigation. This may be appropriate where the employee is disrupting the ordinary course of business, posing a threat to other employees or potentially impeding an investigation. In almost all cases, a suspended individual must continue to be paid pending their return to work or subsequent dismissal.
At the conclusion of an investigation, the employer must hold a disciplinary meeting. Here the employer will present their case, including witness testimony.
The employee should be permitted to present their own case and respond to allegations against them, and given a reasonable opportunity to make enquiries and submit evidence, including witness testimony. Both the employer and employee must provide notice in advance of witnesses to be called.
The rights of the employee
An employee has a statutory right to be accompanied to a disciplinary meeting by a designated Companion. In all cases, the request to be accompanied must be reasonable in nature. To qualify as a Companion, the individual must be:
- a trade union representative or colleague; and
- impartial, as in lack a vested interest in the outcome of the proceedings.
In almost all circumstances, an employee will not have a right to be represented by a solicitor.
A disciplinary hearing may result in the issuance of a formal warning or other sanction deemed appropriate, including dismissal. Generally, a dismissal is only permissible if previous warnings have been provided. However, some instances of gross misconduct may result in automatic dismissal.
When considering sanctions, the employer must take into account the severity of the conduct or lapse in performance, and consider any mitigating circumstances presented to them.
An employer must be allowed to appeal the outcome of a disciplinary hearing. Appeal must be made in writing and dealt with as far as possible with management staff that were not previously involved in the initial hearing. Appeals must be heard without unreasonable delay.
In addition to disciplinary procedures for specific conduct, an employer should conduct ongoing performance management to ensure their business is operating smoothly and objectives are being met.
Performance management has a dual function. Through ongoing performance review, it first of all establishes a mutual understanding of expectations and standards between colleagues and their superiors. Secondly, while specific instances of misconduct or negligence can warrant dismissal, if an employee has an ongoing record of poor performance they can be subject to ongoing review and warnings, and dismissal can be achieved without the danger of it being considered unfair.
A performance review is a means of determining shortfalls in employees’ productivity and identifying where there are continuing training requirements. It also presents a means of monitoring whether previous disciplinary measures are being complied with. Employers must ensure that their performance review processes are not discriminatory in nature.
Unfair and constructive dismissal claims
For contracts commencing after 2012, only employees who have been employed for two years can bring unfair dismissal claims. Unfair and constructive dismissal claims are brought before the employment tribunal.
A dismissal will be considered unfair if an employer fails to adhere to the ACAS Code, or if the dismissal is not accompanied by a valid reason. By law, employees have a range of rights, the exercise of which cannot form the reason for a dismissal, these include:
- requests for a statement of employment terms;
- maternity leave;
- requesting contractually agreed pay; and
An employer cannot terminate an employment contract because an employee has reached retirement age.
If an employer puts undue pressure on an employee, such as inappropriate sanction or unwarranted investigation or performance review forcing the employee to quit their position, the employee may have a constructive dismissal claim against their former employer.
Three month time limit
Unfair and constructive dismissal claims must be brought within three months of the relevant date of dismissal.
Implications of failure to adhere to the ACAS Code
As mentioned above, failure to adhere to the ACAS Code may result in the entire process being considered unfair, if the matter is eventually brought before the employment tribunal. The employment tribunal may impose heightened, or reduced, compensation within a 25% bracket depending on the conduct of the employee or employer when handling the dispute.
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