If an employee’s work, conduct at work, or absence is generating frequent concern within the business, their employer may begin the process of formal disciplinary action against them. However, it is integral that the employer first considers the whole situation, particularly the legal implications involved with issuing a warning.
In most cases, it is far better for the employer to resolve issues informally wherever possible. Depending on what the issue is, it may be appropriate to have an informal chat or verbal warning with someone rather than going through the process of issuing a formal warning. Unfortunately, many issues are severe enough to warrant further formal investigation.
It is the responsibility of HR to implement a clear policy and procedure for your business to manage the process of issuing formal warnings for cases of misconduct and capability. This discipline policy and procedure should apply to all employees who work within the organisation.
Formal warnings - fact finding
If the employer believes that an incident warrants a formal warning, their first step is to consider the legal implications involved and ensure that the person is going to be treated fairly.
A full fact-finding investigation should first be conducted by a company manager, accompanied by an HR representative. Employees are not legally obliged to be accompanied at an investigation meeting. However, it is good practice to give people the option of being accompanied if they wish. The person being investigated should always be invited in writing and the letter should detail the accusations being made.
Following an investigation, the employer and HR representative will be more informed to make a decision as to the best course of action.
Should we proceed to a disciplinary?
In order to issue any type of warning, you need to invite the person to a formal meeting, usually badged as a disciplinary hearing.
Although there is no legal notification of specific timescales, it is good practice to offer at least a couple of days notice so that the person can prepare their side of the story. A common rule of thumb is to offer no less than 72 hours notification.
When inviting a colleague to a disciplinary hearing they have the right to be accompanied by one of the following:
- a colleague
- a trade union representative, or
- an official employed by a trade union
The disciplinary hearing
It is important that all managers who are expected to conduct disciplinary hearings are fully trained in how to do so. The manager conducting the hearing should also be accompanied by the HR representative who is on hand to offer legal advice and record a full account of the meeting.
Potential outcomes of a disciplinary hearing
No further action - This may be due to lack of information to support the claims against the employee, evidence of discrimination or if there was a lack of understanding from the individuals being accused.
A verbal warning - This does not have to be issued as part of a formal procedure, but issued through a disciplinary hearing can prevent problems from escalating in the future.
First written warning / Improvement notice - It is the responsibility of the HR representative to offer advice that stipulates what the required improvement is.
Final written warning - With any formal disciplinary warning, you should stipulate how long this will remain on the employee’s personal record. We suggest the following timescales:
First written warning / Improvement notice — 6 months
Final written warning — 12 months
This is the ultimate sanction of a disciplinary hearing. HR managers should always be on hand to offer legal advice when this is considered. There are five major reasons for dismissal:
- Capability or qualifications
- Illegality or contravention of a statutory duty
- Some other substantial reason
If someone is unhappy with a warning or sanction that has been issued then the HR representative must clarify the organisation’s appeal process and timescales.