A Beginner’s Guide to Disciplinary Procedures – Part 1

Here at Avensure, the most frequent area of employment law/HR we are asked about are conduct and disciplinary issues.

Matters of misconduct, whether they are fairly minor or whether they are serious, need to be handled in a fair way and in line with the employer’s disciplinary procedure or the ACAS Code of Practice.

Over the next few weeks, we will be focusing on the disciplinary process. We will be breaking it down into each of its stages to provide you with a clear guide and some top tips, to ensure that you avoid the many pitfalls that can lie in wait.

In Part 1 we will begin by outlining what misconduct is and also what it is not. We will also explain the purpose of a disciplinary procedure and how it can work for you.

What is conduct?

When we refer to conduct, we are referring to behaviours that the employer expects from their staff. Misconduct refers to those behaviours that staff occasionally exhibit which their employer expects not to see.

Is there a difference between conduct and performance?

Yes. It’s important that we understand the differences between poor performance and poor conduct (or misconduct) because there are different procedures for dealing with each.

Put bluntly, misconduct is usually ‘can do, won’t do’ and poor performance (capability) is a case of ‘can’t do’.

How do we differentiate between the two?

This is where it is important to take advice from us. When you look at the above ‘can do, won’t do’ versus ‘can’t do’ it seems very straight forward but it is easy to apply the wrong label.

When you contact us for advice, we will ask you some questions not only about the employee’s behaviour, but we will also ask you for information regarding the employee, so it is a good idea to have their file with you when you call.

The first thing we want to do is find out what has happened. Misconduct concerns the breaking of a rule or procedure. For example, lateness, failing to follow an instruction, rudeness to a client or colleague and so on.

To establish if we are dealing with a conduct or capability issue, we need to answer two main questions:

  1. Did the employee know about the employer’s rules and procedures?

This is usually evidenced by them having signed to confirm receipt of the employee handbook and/or they have shown through their past behaviour that they know the rules.

  1. Are there any mitigating factors which could (reasonably) explain their misconduct?

This is where an investigation is required, and we will explore the investigation stage of the disciplinary process in next weeks article.

If for example, the employee has been rude to a client or colleague, but it transpires that they have just received some bad news, such as a member of their family being diagnosed with a terminal illness for example. Whilst this doesn’t give someone free reign to behave badly, it would shed some light on why someone who is usually polite and courteous has suddenly behaved the way they have.

Perhaps they have a medical condition or disability that is affecting their behaviour- we would need to look into this rather than issuing a warning or terminating their employment, otherwise you could be exposed to a discrimination claim.

Similarly, if we are investigating a breach of procedure and it transpires that the employee wasn’t aware of a recent change in procedure or could benefit from some additional training or support- here we are straying into the area of capability rather than conduct and disciplinary action would not be appropriate.

What is a disciplinary policy and why is it important?

Disciplinary policies should do several things:

  • It set out the rules and behaviours the employer expects from their employees
  • It gives examples of the kinds of behaviours the employer does not expect to see
  • It sets out how allegations of misconduct will be investigated and handled – the disciplinary procedure
  • It sets out who is responsible for carrying out those procedures
  • The likely sanctions that will be given for proven allegations of misconduct i.e., levels of warnings and their duration
  • The right of appeal

As you can see, a disciplinary policy is there to benefit the employer and the employee. It sets out your standards and expectations and gives you a procedure to work to in order to ensure that all cases are handled the same way because consistency is the key to avoiding bias and unfairness.

Disciplinary policies (including those drafted by Avensure for our clients) are built around the ACAS Code of Practice, which sets out the minimum steps that you are expected to follow to ensure fairness in a disciplinary situation. It is this code that Employment Tribunals will expect an employer to adhere to.

A copy of the code can be accessed here.

Are there different types of misconduct?

Yes, there are and it is dependent upon the seriousness of that misconduct as to what level the it falls into.

There are three types of misconduct:

  1. Misconduct- this usually concerns minor misdemeanours such as lateness (though this can be serious depending on the sector and the impact of the lateness), carelessness which results in minor errors, unprofessional conduct and so on.

You would expect to issue a lower-level warning for instances of misconduct, such as a verbal or written warning or an informal warning (letter of concern) where the misconduct has not been deemed serious enough to take formal disciplinary action and has been dealt with by an informal discussion.

  1. Serious misconduct– many instances of lower-level misconduct can be bolstered up to serious misconduct, this is usually because the employee has committed several rule breaches or the impact on the company has been serious. For example, rudeness to a client which has resulted in a formal complaint. They are usually allegations which are serious but not serious enough to be classed as gross misconduct.

Serious misconduct usually results in a formal warning, a written warning or a first and final written warning depending on the severity.

  1. Gross misconduct– the big one! Cases of gross misconduct are rare and concern the most serious breaches of rules and procedures. They include things like theft, violence, fraud, health and safety breaches which could result in loss of life or serious injury, discrimination and so on.

Please see our previous article about gross misconduct for more information here.

Top tips:

  • Make sure your disciplinary procedure is distributed to staff and managers- the policy is useless if it is sat on a shelf collecting dust!
  • Be consistent– don’t be tempted to deviate from your own procedures- its confusing for the employees and you will be accused of having ‘one rule for us and another rule for them’.
  • Conduct or capability? ‘Can do, won’t do’ versus ‘can’t do’ or ‘round peg, square hole’.
  • Make sure you seek advice from us. Please quote your Client Account Number on all correspondence and telephone calls. 24-hour client advice line: 0800 151 2935.

Next week– we focus on the investigation stage of a disciplinary procedure, why it’s important and the perils of skipping it.