How to... Manage misconduct A quick and easy reference guide on the basics
1 Top tips for managing misconduct 1. Follow the ACAS Code 2. Comply with your own procedures/policies 3. Carry out a thorough investigation within a reasonable timeframe 4. Invite the employee to a disciplinary hearing at a reasonable time and place 5. Give the employee all the evidence and sufficient time to prepare for the disciplinary hearing 6. Hold the disciplinary hearing 7. Consider all the evidence carefully, decide the outcome and confirm this in writing without unreasonable delay 8. Give the employee a right of appeal 9. Deal with any appeal within a reasonable timeframe, confirming the outcome in writing About our HR How to Guides These bite-sized reference guides provide an outline of the processes commonly managed by HR in the workplace. They do not provide full detail of these processes and are not a substitute for legal advice, particularly as every situation will depend on the particular circumstances.
2 How to manage misconduct Why is it important to get the process right? "Conduct" is one of five potentially fair reasons for dismissal. If a fair procedure is not followed, it is highly likely a tribunal will find in any resulting claim that the dismissal was unfair, even if the employee's misconduct was sufficient to justify a dismissal. The Acas Code of Practice on Disciplinary and Grievance Procedures provides practical guidance to employers on how to carry out a fair procedure and should be followed where possible for misconduct dismissals. Any unreasonable failure to do so can lead to 25% uplift in any compensation awarded. Initial questions to consider: Can the issue be resolved informally? Consider whether formal action is needed, or whether the misconduct can be resolved through informal discussions. Is suspension required? Another question to consider is whether to suspend the employee. If so, they should be informed of this in writing as soon as possible. They should also be informed of the likely duration of the suspension, their rights and obligations, and who their point of contact will be for that time. Record the reasons for the decision to suspend and keep their suspension as brief as possible and under regular review. There may be an express power to suspend in the employee's contract. If not, provided the employee is paid in full, suspension to investigate should not be a breach of contract. The risks are higher if the employee depends on being allowed to work in order to maintain their skills and reputation, or to earn commission. What does your own policy/procedure say? The Acas Code recommends employers should draft their own disciplinary procedures. Employees and managers should be trained on what the rules are, where they can be found and how they are to be used. Failure to follow internal procedures can lead to unfair dismissal claims. Carry out a thorough investigation Carry out thorough investigation into the alleged misconduct as quickly as reasonably possible. The employee's line manager will often do the investigation, but it could be done by another manager or HR. Where possible, the investigation and disciplinary hearing should not be carried out by the same person. In everything but a small business, this should be possible. The level of investigation needed should be sufficient to determine whether there is a case to answer. In many cases, this will involve holding an investigatory meeting with the employee to put allegations to them and interviewing witnesses. It may also involve looking for relevant business records/emails and CCTV records. The investigation should be fair and even-handed, and should look for evidence in the employee's favour as well as any evidence of misconduct. Keep written records of the investigation and take notes of investigatory meetings.
3 Invite the employee to a disciplinary hearing If the conclusion of the investigation is that there is a case to answer, within a reasonable timeframe, invite the employee to a formal disciplinary hearing at a reasonable time and place and inform them of their right to be accompanied at that hearing by a fellow worker or trade union representative. The employee must know the case against them and the possible consequences (particularly if dismissal is a potential outcome), so they can respond. It is important that the letter to the employee sets out the nature of the allegations precisely, and in sufficient detail to enable them to respond to them at the hearing, and the possible consequences if the allegations against them are upheld. The allegations should be presented consistently throughout the disciplinary process. The employee should also be given copies of all evidence that will be relied on at the disciplinary hearing, and the names of any witnesses who will attend, in sufficient time before the hearing to consider the allegations against them and to gather evidence. They should be asked to provide any evidence of their own in advance of the hearing. The disciplinary hearing At the hearing, explain the complaint against the employee and go through the evidence. The employee should then be given ample opportunity to present their case, to ask questions and to present evidence (including calling witnesses). If the employee has a representative, they should be allowed to make statements and ask questions on the employee's behalf, but not to answer questions put to the employee directly. The disciplinary decision Following the disciplinary hearing and any further investigations if they are necessary, all the evidence should be considered carefully. Any findings of fact should be based on a reasonable and genuine belief following a reasonable investigation. Ensure that the employee is only disciplined for the misconduct they have been accused of and act consistently with previous misconduct decisions. Consider whether a disciplinary sanction is appropriate, and if dismissal is contemplated, consider alternatives (e.g. a final written warning). Disciplinary sanctions are usually structured in stages: stage 1 recorded verbal warning stage 2 first written warning stage 3 final written warning stage 4 dismissal with notice Dismissal without notice is only appropriate for gross misconduct. For guidance, look at the employer's disciplinary procedure which should list examples (these might include theft, violence, drunkenness etc.). Once a decision has been reached, inform the employee of this in writing without unreasonable delay. The disciplinary outcome letter should clearly set out: the allegations against the employee and findings in relation to each of them the factual basis and reasons for the decision details of any disciplinary sanction their right of appeal and information about how to appeal, within the relevant timescale Where a warning is given, the wording should be clear and unambiguous and should state the period of time it will remain on the employee's file.
4 Dealing with an appeal Give the employee a right of appeal against the disciplinary decision and if they do appeal, they should be asked to provide full grounds of appeal. Consider whether a full re-hearing, or a review of the decision and available evidence at the original hearing, is needed. In either case, the appeal should be dealt with impartially and by someone who was not involved previously, where possible. Please contact one of the partners in our team, or your usual advisor at Clyde & Co. Robert Hill Partner T: +44 20 7876 6214 E: robert.hill@clydeco.com The employee should be invited to an appeal hearing within a reasonable timeframe and informed of their right to be accompanied at the hearing. After the appeal hearing, and any further investigations if necessary, the employee should be informed promptly of the decision in writing.
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