19th February 2015

Disciplinary Issues in Employment – How to deal with poor performance or misconduct?

It is common for disciplinary issues to arise within employment, and the first point for an employer is to clearly determine whether it is a misconduct issue, or one of poor performance. The two types are dealt with differently depending on their nature.

Usually it should be quite easy to determine one from the other, but there may occasionally be a case which is ambiguous, where specialised advice may be necessary. Adopting the wrong steps may prove very damaging in any later tribunal proceedings.

Best practice may be summed up in the ACAS Code of Practice, which can help to avoid unfair dismissal claims and reduce compensation payments.

The crucial principles are that an employer should:

–investigate the issues properly. The scope/depth of the investigation should be proportional to the seriousness of the allegations; they may involve the taking of statements from other employees, or the collection of other evidence. Any suspension should be kept as brief as possible, and reviewed regularly.

-inform the employee of the issues in writing, including providing written evidence in advance, notifying of consequences of finding against him, giving the employee an adequate opportunity to prepare his defence.

–hold a meeting / hearing with a fair procedure, allowing the employee to be heard fairly, and to bring a colleague along if desired.

-inform the employee of the decision in writing without undue delay, and offer the opportunity of an internal appeal, to be heard by another impartial manager.

Other practical points for employers include that:

-the procedures should be set-out in a handbook or code, which should be made accessible to employees. If you do not already have one, you may need assistance in drawing-up a handbook, reflecting the most up-to-date state of English employment law.

-conduct/performance issues should be managed pro-actively, before reaching a disciplinary stage.

-always investigate thoroughly, and look and the evidence fairly.

-keep written records of everything.

-keep decision ‘outcomes’ in proportion to the ‘offence’. What was it that really went wrong, and how would an independent tribunal look at it?

Misconduct – specific points

Dismissals related to the conduct of an employer probably form the largest chunk of all contested unfair dismissal claims which end up in employment tribunals. The basic points are straightforward, but can get forgotten about in the heat of an emotional conflict between two sides.

These conduct issues can be divided into those cases where the conduct was serious enough to be classed as ‘gross misconduct’, and those where one or two relatively less serious breaches of contract occur.

Serious breaches involve conduct such as theft, fraud, other dishonesty, violence, deliberate flouting of reasonable orders, violence, or unauthorised unexplained absence from work.

An appropriate penalty for a finding of gross misconduct would be immediate dismissal without notice. (This is all, of course, subject to proper investigation as outlined earlier.)

Non-serious misconduct is other conduct which is a technical breach of the contract, but not serious enough to merit dismissal. It usually only warrants a warning, which remains on the employee’s HR file for a stated period of about two years. The warning can be oral or written, depending on its seriousness. After that time the file should effectively be ‘wiped clean’ (although that is subject to some limitations). After two or three outstanding warnings, dismissal would be justified on the basis that the accumulated misconduct amounted to gross misconduct.

Where you are choosing to dismiss an employee on the basis of ordinary misconduct, where the employee does not have the right to claim unfair dismissal, he will usually retain the right to notice pay.

Capability – specific points

One reason that a dismissal might be fair is due to an employee’s skill, aptitude, physical or mental quality.

It may also be classed as capability if the employee no longer becomes/remains qualified for the job, e.g. by losing a driving licence or professional qualification. It is therefore important to specify the vital qualifications in the employment contract.

As part of a ‘capability procedure’, you should, amongst other things, produce clear objective evidence of the lack of performance, to be able to justify having a reasonable belief in it. A series of appraisals or development reviews over a period of time, with correspondence, is good evidence.

The employee should have been given an opportunity to improve, and should have been clear as to what is required of him. Adequate training/coaching should have been made available.

Difficulties relating to medical/physical incapability can have implications for potential disability claims under the Equality Act 2010. What this means in practice is that every alleged incapability must be looked at sensitively and proper professional legal advice may be necessary on whether it may fulfils the definition of disability under the Act. If so, reasonable adjustments under the Act may need to be undertaken. There is no statutory cap on such successful claims in tribunal compensation awards, so it makes sense to nip a claim ‘in the bud’ as soon as possible by taking advice at an early stage.

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