Managers have a right to discipline employees for inappropriate behaviour or conduct, where the mutual trust and confidence necessary for the employment relationship to exist is threatened.

Examples of inappropriate behaviour

· Timekeeping and unauthorised absence

· Misuse of company facilities

· Failure to follow instructions

· Failure to meet targets and deadlines

· Breaches of company policies

· Attitudinal problems

· Personality clashes

· Breaches of confidentiality

· Insubordination

Performance or capability problems may arise because of:

· Long-term absence due to sickness

· Frequent short-term sickness absences

· A lack of proper qualifications to do the job

· Incompetence Disciplinary procedures are designed to address conduct and not capability issues, where the shortfall in performance is not within the employee's control.

Many organisations adopt a separate capability procedure designed to cover issues of ill-health and poor performance for reasons that are outside the employee's control, e.g. a lack of training or supervision or a change in job content.

In poor performance cases, investigations will first be needed to determine the reasons for the shortfalls and establish whether the issue is one of capability or conduct.

Why have a disciplinary procedure at all?

The aim of disciplinary procedures is to help and encourage improvement among employees whose conduct or standard of work is unsatisfactory. This will realise the following benefits to the organisation and employees:

· Provides a fair and speedy means of dealing with disciplinary incidents

· Employees understand organisational rules and standards of conduct and performance expected of them and the likely consequences should they fail to meet standards or abide by the rules

· Promotes organisation's values and better day-to-day management practices

· Assists employees in developing their potential

· Saves time and money, because issues undermining employee morale are identified and corrected

· Provides a better defence in employment tribunal cases

· Builds an organisational climate based on openness and trust Regardless of size, all organisations must follow the minimum statutory Dismissal Disciplinary Procedures. Recent research suggests that small employers are disproportionately represented in unfair dismissal claims and have a lower success rate in defending claims than larger establishments because they are often more likely to be guilty of procedural failings.

Where organisations do not follow the statutory 3- step procedure for dismissals, as shown below, they will automatically lose at employment tribunal and the compensatory award to the employee will be increased by 50%.

What is the solution?

Have written rules, correspondence, template letters and procedures in place, which meet statutory requirements and ensure that managers are trained in handling discipline.

A further problem for small companies concerns the employee's right of appeal. For instance, the managing director may be the only person authorised to dispense disciplinary sanctions and therefore would have difficulty in being impartial at an appeals hearing.

So if you are a small employer, you might consider the use of third parties, e.g. independent arbitration, which would then constitute the appeals stage in your internal procedure.

What do tribunals look for when hearing a claim of unfair dismissal?

When hearing unfair dismissal cases, employment tribunals will expect employers to show:

· They acted reasonably in treating this as a sufficient reason to dismiss the employee

· The reason for dismissal and that this was related to the employee's conduct

· The employer acted fairly in all the circumstances and the penalty was consistent in relation to previous similar incidents.

· They followed a correct procedure in line with the statutory dismissal procedure

What should be included in a disciplinary procedure?

Disciplinary procedures need to adhere to the rules of "natural justice", which are:

· The employee charged with misconduct should be informed, in advance, in writing, that a disciplinary hearing is taking place. The nature of the allegation should be explained.

· There should be a full investigation by an unbiased individual to establish the facts of the case.

· At the hearing, the employee should be informed of the precise allegations and should be given an opportunity to answer them.

· Those conducting the disciplinary hearing should keep an open mind and not prejudge the case.

· The employee is entitled to appeal against a disciplinary decision to a third party who has not previously been involved in the case.

· The employee should be allowed to challenge any evidence that will be relied upon in reaching a disciplinary decision.

· Comply with the statutory DDP framework

· Include a policy statement setting out the aim and objectives

· Identify to whom the policy applies - it may not apply to everyone e.g. probationers

· Provide for proceedings.

· Collect relevant and accurate information

· Keep it confidential and secure in an appropriate place for an appropriate period of time

· Unsubstantiated allegations should be removed from personal files as should 'spent' disciplinary warnings

· Witness statements and records to be kept confidential

· Indicate the disciplinary actions that may be taken. These commonly include:

· Warnings or final written warnings depending on the seriousness of the offence. Employers do not have to work their way through the hierarchical system of warnings, but should issue appropriate sanctions

· Provide a non-exhaustive list of those offences that will normally be regarded as examples of gross misconduct, leading to summary dismissal, which is where due to the severity of an offence and its effect on the employment relationship, the employee is dismissed without notice or pay in lieu of notice.

Common examples include:

· Theft

· Fraud

· Serious health and safety infringements

· Fighting

· Assault

· Bullying

· Harassment

· Discrimination

· Serious negligence

· Disloyalty

· Insubordination

· Serious breaches of company policies such as those on smoking in the workplace or Internet usage.

· Specify the levels of management that have the authority to take the various forms of disciplinary action, including appeals ensuring that a lack of availability would not hold up proceedings

· Provide for employees to be informed of the allegations and, be privy to relevant evidence before any hearing

· Provide employees with an opportunity to state their case before decisions are reached

· Ensure that disciplinary action is not taken until the case has been carefully investigated and consider, in cases of suspected gross misconduct, suspending the employee on full pay during such investigations.

· Allow for the disciplinary investigation, hearing and any subsequent appeal to be dealt with by separate, unbiased managers

· Provide for matters to be dealt with without undue delay, but allow flexibility to extend deadlines to accommodate further investigation or the lack of availability of witnesses or companions

· Allow for individuals to be represented or accompanied at disciplinary hearings. It would be possible to build in flexibility for a note taker to also attend a meeting, who would serve as an additional witness

· Ensure that, except for gross misconduct, no employee is dismissed for a first offence

· Ensure that employees are given an explanation for any penalty imposed, i.e. the reason for the decision, the timescale for which the disciplinary action will remain on the personal record and the consequences of further breaches of the disciplinary rules

· Provide a right of appeal, normally to a more senior manager, and specify the procedure to be followed and the timescale for so doing. Point out that the manager or director involved may reduce or increase the original disciplinary penalty.