Misconduct

Fully investigate the alleged misconduct, checking if a specific disciplinary rule has been broken, or, if the offence does not relate to a specific rule, that there is clear evidence of a knowing transgression.

Before a disciplinary hearing can be held, the employee must be given a letter setting out the charge against him, or her, and given sufficient time to prepare a defence, say a few days. A disciplinary hearing can then be arranged, and evidence of previous warnings should be to hand. If there are no such warnings on record, even if it is confidently known that such warnings were given in the past, then dismissal should not take place, and the appropriate warning should be given and recorded after the hearing if so decided. The absence of properly recorded warnings can frequently lead to extreme frustration in the mind of the employer, as it is unsafe to proceed to the next stage of a disciplinary process, especially if that stage is dismissal, without firm written evidence that no “short cuts” have been taken anywhere along the line. In the absence of such firm evidence of the full completion of the disciplinary procedure as advised by the ACAS Code of Practice, employers may find that they are unable to prove that a dismissal was not unfair should the dismissal be challenged by way of an approach to an Employment Tribunal.

Employers should ensure that the last warning issued to the employee stated clearly that a further breach of the rules would result in dismissal, and that the employee has been given an opportunity to improve since that warning.

At the disciplinary hearing, the employee must be given the right to be represented or accompanied, by a working colleague or trade union representative, and the opportunity to explain his or her side of the matter. If witnesses are called, allow the employee to question their evidence. The events should be recorded as fully as possible.

The employer should make a reasonable decision on the evidence before him, and decide whether to dismiss, suspend without pay, or take no further action. Care should be taken in extending the warning procedure, as the issuing of yet another “final warning” following others to the same employee can erode the effect of such warnings to the point where they can cease to have any real force, and employees might justifiably argue that a final warning did not really mean what it said. If there was evidence that it was the practice of a particular employer to issue final warnings which did not lead to dismissal on the occasion of a further offence, an industrial tribunal could well decide that the employee was justified in protesting that he or she should not have been dismissed for repeating the transgression.

The employer's decision must be communicated to the employee, in writing, and he or she must be allowed and informed of, the right of appeal.