Tackling staff misconduct is difficult. Managers might be reluctant to have difficult conversations with employees who have overstepped the mark. But failing to deal with situations head on can have consequences. Employees who are not warned about bad behaviour are more likely to repeat it. And attempting to deal with problems later on can lead to allegations of inconsistency.
Like most areas involving employees, having a good Disciplinary Procedure should empower managers to deal with misconduct. The Disciplinary Procedure should set out examples of misconduct and gross misconduct, the process to be followed in cases of suspected misconduct, and the types of sanction that might follow.
The ACAS Code of Practice is clear that consistency is key. Disciplining one employee for doing something that is widely practised by others will inevitably be found to be unfair. It is important therefore that all employees and managers are aware of the organisation’s views on particular practices and that they are set out in the Staff Handbook, Policies or Procedures. A paper policy is not enough however: the policy should be followed in all cases or none. An example might be lateness or internet usage. If a strict policy is not generally followed, an employee might rightly complain when they are singled out.
Other essentials of a Disciplinary Procedure are those of natural justice: informing the employee of the “case” against them, offering them the opportunity to respond to that case and allowing the right of appeal. Employees should be offered the opportunity to be accompanied at any disciplinary hearing by a colleague or union representative.
The general principle is that an employee should not be dismissed for a first “offence” unless in cases of gross misconduct. Defining gross misconduct can be difficult, and the source of much argument, but this can be made easier by having a Disciplinary Policy or Procedure clearly setting out (non-exhaustive) examples.
Nevertheless, we recommend seeking advice in difficult cases, as the consequences of getting it wrong could be a constructive or unfair dismissal claim.
We can help with
- Drafting Disciplinary Policies and Procedures
- Taking an employee through a disciplinary procedure
- Where an employee appeals a warning or dismissal
- Tribunal claims arising from warnings or dismissal
Contact Louise Taft on 020 7935 3522 or firstname.lastname@example.org if you have any issues with staff misconduct.