FAQs – HR DISCIPLINARY PROCEDURES
We support clients to get the basics in place, whilst advising on a wide range of employment matters. Our clients range from the very small with just two or three employees, right the way up to bigger organisations with 50+ employees.
In this blog series, HR Consultant Melissa Marlow takes you through the most frequently asked questions about “HR disciplinary procedures”.
What is the minimum disciplinary procedure employers must follow?
Employment tribunals will take into account the ACAS code of practice in considering cases and therefore it is advisable, whatever size an employer is, to at least follow this procedure. Following these guidelines will ensure all disciplinary matters are handled without unreasonable delay, fairly and consistently.
Employers must legally provide employees with a Disciplinary and Dismissal Policy, which may reflect the ACAS code.
Do employees have the right to be accompanied at a disciplinary hearing?
Employees have the right to be accompanied by a workplace colleague, or a Trade Union representative at all meetings which could result in a confirmation of a warning, or other action already given. This therefore includes disciplinary, and appeal hearings.
What is the role of a companion at a disciplinary hearing?
A companion is allowed to address the hearing and to put forward and sum up the employee’s case. They are also able to confer with the employee during the hearing, or at any adjournment.
As a disciplinary hearing is primarily a meeting between the employer and employee, a companion cannot answer questions on behalf of the employee – they must respond to direct questions themself. The companion also cannot speak if the employee does not wish them to, or to obstruct the employer in explaining their case.
How should employers deal with a grievance raised by an employee, who is going through a disciplinary process?
There is no need for an employer to delay the disciplinary process if the employee raises a grievance at the same time. However, in some circumstances it will be helpful to deal with the grievance promptly, particularly where the two processes are related e.g. the grievance is complaining about the management of the disciplinary procedure. In this case the employer should deal with both issues concurrently.
If the grievance is unrelated to the disciplinary, it may be more appropriate for the employer to deal with it separately, after the disciplinary procedure is concluded.
Can an employer dismiss an employee without following its disciplinary procedure?
Employees must have at least 2 years’ service to be able to claim unfair dismissal. However, although those with under 2 years’ service cannot claim unfair dismissal they may still be able to claim breach of contract, discrimination or unfair dismissal if the dismissal is for a specified unlawful reason (such as, a dismissal related to pregnancy).
It is therefore advisable, whatever size an employer is, to always follow a fair and consistent procedure.
Can an employer dismiss an employee for a one-off act of poor performance?
In the majority of cases, for a dismissal for poor performance to be fair, an employer will need to have followed their disciplinary procedure, issuing warnings previously and allowing a period of time for improvement.
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