Most employers reading this checklist will already have a Disciplinary Policy in place, to a greater or lesser extent. Employers should ensure that the following matters are addressed within that policy;
Flexible – Does the policy provide enough flexibility if normal process needs to be amended slightly? Does the policy permit additional issues to be considered as misconduct even if they have not been specifically prescribed within the policy?
Accompaniment – does the policy confirm an employee's right to be accompanied at a disciplinary meeting?
Date - Is the policy up to date? i.e. has it been reviewed in the last 12 months for changes in legislation or approach.
Effective – Does the policy prescribe behaviours which are not acceptable and state clearly the steps which can be taken by the Employer in response to misconduct?
- Some employers will have standard precedent letters ready for use in the circumstances where disciplinary action is required. Care must be taken to ensure that each letter is tailored to the circumstances for each individual.
- When misconduct is identified which could give rise to a dismissal, the initial letter which calls an individual to a disciplinary hearing must state that one outcome of the disciplinary process is that the employee could be dismissed.
- For an employer to establish fairness it must be shown that reasonable investigation has been undertaken. Whilst 'reasonableness' can be seen as a vague concept, an employer's actions should be within a band of reasonable responses when faced with alleged misconduct.
- An employee who is subject to disciplinary action has the right to see the evidence which will be referenced during a Disciplinary Hearing in advance of that meeting. The individual must be provided with sufficient time to review and prepare for that hearing. A failure to do so inevitably gives rise to questions of procedural unfairness and increases the chance of appeal and tribunal action thereafter.
- A disciplinary meeting should be arranged as quickly as possible, and rarely, unless without good reason, any later than a week from the date of the first letter confirming that disciplinary action has been initiated. On-going delay, particularly if an employee remains on suspension from duties, can be seen as prejudicial to any subsequent return.
- It is important than an outcome letter is thorough in its approach and content. Each allegation made against the employee should be set out and discussed to illustrate that each issue has been considered by the disciplining officer. If dismissal is the outcome, the reasons for the dismissal must be clearly stated in accordance with the Employment Rights (Northern Ireland) Order 1996.
- There is always the right of an employee to appeal against a disciplinary sanction. An employer's policy must set out clearly the process for an appeal, to whom it should be addressed, how it should be made and how soon an application must be lodged after a decision has been made. The employer should indicate how quickly the employer will address such an appeal application. Choosing realistic timescales to which the employer adheres will often make the process much less fraught.
- Employers must strive to keep the investigation and appeal process separate. The disciplining officer should not be the same person who hears the appeal and ideally, the person who hears the appeal should be more senior than the disciplining officer. This should only ever occur in circumstances where an employer has very few staff members at a management level. The mixing of disciplinary and appeal processes automatically gives rise to inferences of impropriety even if none exist.
- It is important to accept that nothing that you do in your process will necessarily prevent a tribunal claim. However, a fair, transparent policy which is followed through on each occasion will provide an employer with its first layer of defence should a disgruntled employee seek redress once the disciplinary process has been completed.