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1.  We wish to discipline a member of staff. Do we have to start with a verbal warning?

No. You are entitled to issue the most appropriate warning for the offence. Sometimes it may be appropriate to start with a verbal warning, for example, if your employee is late to work, but in circumstances where their conduct is more serious, you may want to issue a written warning and in serious cases a final written warning. You can only dismiss an employee without any prior live warnings on their record where they have committed an act of gross misconduct.

However, if you are taking your employee through a performance improvement process, you will normally be expected to issue a series of warnings and give the employee time to improve before reaching a decision to dismiss.

If your employee has not yet completed their probationary period, you can usually dismiss them before the end of the probationary period and without the need to go through a series of warnings. Extra care must be taken if for some reason the disciplinary process is contractual, for that may mean that as a matter of contract, you have to follow the stated procedure.

2.   A member of staff has said that they want to be accompanied to a disciplinary meeting by a union official. We don’t recognise a union. Can we turn down their request?

No. The right for a worker to be accompanied applies even if you do not recognise the union and even if the worker is not a union member (albeit this could of course mean that it is difficult for such a worker to obtain that assistance). The right is not limited to employees and may therefore include casual, temporary and agency workers.

The law provides that a worker has the right to reasonably request that a colleague of their choice or trade union official accompanies them at a disciplinary or grievance hearing. A trade union official is someone employed by the trade union as an official or another person employed by the trade union with appropriate experience.

The only proviso is that the worker’s request to be accompanied must be reasonable. A request will be reasonable if it relates to a colleague or trade union official. You must not choose the representative or put any pressure on the worker to be represented by a particular person, even if you think that the person they have chosen is likely to be disruptive or otherwise prejudice the hearing.

3.   Under what circumstances can we take into account warnings that have expired?

In most cases, expired warnings cannot be taken into account to determine new disciplinary penalties. However, they do not need to be ignored for all purposes. If the employee’s behaviour is sufficiently serious to justify dismissal you can refer to an expired warning to explain why you have decided to dismiss this individual in circumstances where you may have applied a less serious sanction to another member of staff. In other words, you do not have to pretend that previous misconduct never happened if you have enough evidence to justify dismissing the individual. If you don’t have enough evidence, you cannot use an expired warning to increase the penalty you wish to impose.

If you wish to refer to live and expired warnings when determining promotion, individual pay awards or bonuses etc, it is sensible to make sure that your policy refers to the fact that warnings will be disregarded for the purposes of future disciplinary sanctions, but will stay on the employee’s records and may be referred to for other purposes.

Warnings amount to personal data and the Employment Practices Data Protection Code suggests that where disciplinary procedures provide for warnings to expire, employees should be informed if these would be removed entirely from the employee’s personnel records.

4.   How long should warnings remain live on an employee’s file?

Normal practice is for different types of warnings to remain in force for different periods of time. The non-statutory Acas guidance (which accompanies the statutory Code of Practice) suggests that a first written warning might be valid for up to 6 months while a final written warning may remain in force for 12 months (or more in exceptional circumstances). Warnings should cease to be “live” following the period specified in the notice.

However, whilst this is a useful rule of thumb, there is nothing to stop you imposing longer warning periods in appropriate circumstances. For example, if an employee’s conduct is satisfactory throughout the period the warning is in force, but lapses soon after, you may want to extend the new warning beyond 6 or 12 months. Similarly, if the same type of misconduct which gave rise to the warning is repeated after the expiry of the warning, you are likely to be justified in imposing a longer warning – possibly two years, or in exceptional cases, even longer.

5.  An employee has not turned up for a disciplinary hearing. Can we proceed in his absence?

Yes, but it is normally not advisable to do so and there are risks attached, particularly if you are considering dismissing the employee. In conduct cases, the purpose of a disciplinary hearing is to decide if the employee has committed the offence they are accused of. The process must be fair and to achieve this, employees must be given advance warning of the allegations and any evidence against them beforehand and then the opportunity to respond to these and to provide any evidence to support their version of events.

Employees with two years’ service have the right to bring claims of unfair dismissal. Employers must have a fair reason for dismissing an employee and additionally to adopt a fair procedure before doing so. The Acas Code of Practice recommends that if an employee fails to attend through circumstances outside of their control (such as through sickness), you should invite them to a further hearing. Even if the employee was not sick and does not give you a good reason to explain their non-attendance, we recommend that you err on the side of caution and offer a further hearing. Your letter inviting the employee to the hearing should make it clear that if they fail to attend the rescheduled meeting without reasonable explanation you reserve the right to make a decision in their absence.

Before making a decision on how to proceed when an employee is repeatedly unable or unwilling to attend a meeting, the Acas Guide suggests that the employer take into account the following considerations:

  • any rules the organisation has for dealing with failure to attend disciplinary meetings;
  • the seriousness of the disciplinary issue under consideration;
  • the employee's disciplinary record (including current warnings), general work record, work experience, position and length of service;
  • medical opinion on whether the employee is fit to attend the meeting;
  • how similar cases in the past have been dealt with.

If you do hold the hearing in the employee’s absence, write to them with the outcome and offer the right of appeal. If the employee appeals, it may be sensible to conduct the appeal as a re-hearing to make sure that all of the issues and evidence are reviewed.

6.  We have invited an employee to a disciplinary hearing but he has phoned in sick. His doctor has indicated that he is suffering from stress and the disciplinary process is exacerbating this condition. What should we do?

It is not uncommon for employees facing disciplinary sanctions (particularly in circumstances where they fear being dismissed) to phone in sick in the hope that the disciplinary process is abandoned.

This has to be carefully managed as the situation gives rise to two conflicting priorities. On the one hand, there is a need to ensure that matters are dealt with speedily and fairly, particularly if it is a serious case in which other employees' interests are involved and, on the other, the employee may genuinely not be well enough to attend a hearing.

You will be expected to act reasonably and what is reasonable will depend upon the seriousness of the allegations.

If the issue relates to the employee’s performance, you may need to consider whether their stress/anxiety has resulted in their poor performance. If it has (you may need medical evidence to establish this) you should consider postponing the process until the employee is fit enough to continue. If you do not expect the employee to return to work in the near future and the allegation against them is potentially serious enough to warrant dismissal or a final written warning, it is good practice to consult an occupational health advisor (or other medical professional) with a view to obtaining a report about the employee’s fitness to attend a disciplinary hearing. Whilst the employee may be too ill to attend work, they may be fit enough to attend a hearing. The occupational health advisor will consider whether any adjustments need to be made (such as holding the hearing in a neutral venue, by telephone or by inviting the employee to make written representations). It is also worth remembering that having the threat of disciplinary action hanging over an employee’s head will often exacerbate their symptoms and the occupational health advisor may consider that dealing with the issue will help the employee’s recovery.

If you do obtain medical advice you must not ignore it. If the advice is that the employee is not fit to attend a hearing, you should postpone it. If you proceed in the employee’s absence they may be able to bring a claim of unfair dismissal against you and/or discrimination if their medical condition amounts to a disability.

7.   Do we have to allow an employee to appeal against a disciplinary warning (even if it is only a verbal warning)?

The Acas Statutory Code of Practice states that employers should allow their staff to appeal against any disciplinary action taken against them. This therefore includes verbal warnings. If you do not follow the Acas Code and the employee successfully brings a claim against you, the Employment Tribunal can increase any award made to them by up to 25%.

Whilst this is clearly good practice, if your employee has less than two years’ service and if the appeal process is non contractual, you can dispense with an appeal in these circumstances.

8.   An employee has committed an act of misconduct and ordinarily, we would impose a written warning under that procedure. However, they have already had a final written warning under our capability procedure (to deal with performance). Can we rely on that to dismiss them?

No. The two procedures are distinct and it is likely to be considered to be unfair if you rely on a final written warning under your capability procedure to justify dismissal for an act of misconduct. Please note; the fairness of your decision will only be a factor if the employee has the right to bring a claim for ordinary unfair dismissal ie; they have at least two years continuous service in your employment.

However, it is not usually necessary to start a separate disciplinary procedure in circumstances where an employee has been given a warning for a particular conduct issue (poor timekeeping) and then commits a different type of misconduct (rudeness). Warnings that are still active may be taken into account even where they relate to a different type of misconduct. Employers are entitled look at the substance of the complaint at the time the warning were issued, how many warnings there have been, the dates and the period of time between those warnings and any other relevant information.

9. What standard of proof we should adopt?

The decisions you reach must be based on a balance of probabilities. This means that you must be at least 51% sure that the employee is guilty of the offence they are accused of. Another way of looking at it is that you must think it more probable than not that the employee is guilty of that offence. If you cannot satisfy this, then you should not impose any warning on the employee.

The higher burden of proof in criminal cases (beyond reasonable doubt) does not apply to civil cases.

Published: 6 March 2017

Employment Law Update - March 2017

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Alan Lewis