Aston Brooke Solicitors remain open for business as usual and we are available to take new and existing enquiries over the telephone, post or via email.

CORONOVIRUS UPDATES
Disciplinary Issues in Employment – Dealing with poor performance and misconduct?

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.

 

For more information on employment law matters or a free consultation, please contact us on 0203 475 4321 or click on the quick contact link above.

 

LATEST NEWS
5 reasons why you should choose Aston Brooke to be your corporate immigration lawyers 

We are highly regarded with the services we offer, and due to our relationships with

read more >
Covid-19 update about Immigration 

Visit Visas The Secretary of State for the Home Department announced on 24 March 2020,

read more >
Transfer of Equity 

In recent months we have had a rise in the number of Transfer of Equity

read more >
Independent Legal Advice: Why do I need it? 

You may have come across a situation where you have been asked to obtain ‘Independent

read more >
Injunctions and domestic abuse 

If you are suffering from domestic violence, we are here to assist you through this

read more >
CHILD ARRANGEMENTS ORDER (CAO) 

What is a Child Arrangements Order (CAO) A Child Arrangements Order (CAO) is an order

read more >
RECENT NEWS
5 reasons why you should choose Aston Brooke to be your corporate immigration lawyers 

We are highly regarded with the services we offer, and due to our relationships with certain sectors in the economy, e.g. health care. As a result we are considered one of the best immigration law firms in London. Professional and skilled immigration lawyers in the Harrow area and renowned immigration lawyers in London, with specialised […]

Covid-19 update about Immigration 

Visit Visas The Secretary of State for the Home Department announced on 24 March 2020, that any foreign nationals who are unable to return home as a result of COVID-19 will be able to extend their visas. This applies to anyone who’s visas expired after 24.01.2020, and for those who cannot leave due to travel […]

Transfer of Equity 

In recent months we have had a rise in the number of Transfer of Equity (ToE) and Remortgage enquiries. Through this article, we will give you a brief explanation of what these transactions entail and what we as residential conveyancing solicitors can do to help. A ToE is a process through which a homeowner can […]

Independent Legal Advice: Why do I need it? 

You may have come across a situation where you have been asked to obtain ‘Independent Legal Advice’ in relation to your conveyancing matter. In fact, in most cases, a lender will advise you to seek Independent Legal Advice regarding your transaction when it becomes necessary to do so. This typically occurs where for example:   […]

Injunctions and domestic abuse 

If you are suffering from domestic violence, we are here to assist you through this challenging time. Our experienced family team are aware of the difficulties and the impact that domestic violence can have on individuals and children. We can prepare a court application quickly and in most cases we can be ready to apply […]

TESTIMONIALS
Professional Experts…
I first used Aston Brooke Solicitors over 3 years ago. Ever since then I have given them all my legal work, I find their staff to be very helpful and easy to talk to. I have brought over 7 residential properties and 2 commercial properties - each transaction has been dealt with professionally and I have always been kept informed.

Mr A Bajwa

Great Knowledge and Efficient
I was put in touch with solicitors at Aston Brooke through a mutual friend to handle a personal Health Care case. I can not speak highly enough for the service I received. My family and I are forever grateful for the all the help on our case. Thank You.

Mr M Grice

Easy to talk to
Ray Purewal at Aston Brooke was my point of contact and I found him to be a great source of knowledge for my case. He handled everything swiftly and dealt with the opposition in the best way possible. Many Thanks Ray!

Miss L Walker

A note to our visitors This website has updated its privacy policy in compliance with EU Cookie Legislation. Please read this document to review the updates about which cookies we use and what information we collect on our site. By continuing to use this site, you are agreeing to our updated privacy policy. For more information please click here.