Disciplinary process

Make sure you tackle misconduct or poor performance properly in order to avoid falling foul of any employment law regulations and stay out of Employment Tribunals.

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Check your employment documents

Review any disciplinary arrangements set out in your HR policies or employment contracts. This Quick Guide summarises the minimum standards but if your own arrangements are more generous on any point then follow whatever is more generous.

Misconduct or poor performance?

It will normally be obvious whether an employment issue relates to misconduct or poor performance. In general, misconduct will involve a deliberate or willful act within an employee’s control, whereas poor performance can encompass matters such as lack of competence or capability. In any disciplinary process, it’s important to clarify whether it concerns misconduct or poor performance from the beginning. If you’re unsure, it’s best to Ask a lawyer for advice.


Consider suspending the employee

In the case of misconduct, you might need to suspend the employee while you look into the matter and take next steps, to protect the business, people and evidence while you investigate. If you do decide to suspend the employee, you can consider using a suspension letter.

You must suspend on full pay and benefits. Make suspensions as short as possible and tell the employee this doesn’t mean that you assume they’re guilty.

If suspension means the employee can't earn commission, performance related pay or use their work benefits, do it only if it's allowed in their employment contract. If it's not covered in the contract and you still want to suspend, Ask a lawyer for specialist advice.

Investigate the facts

You should collect evidence and interview witnesses; ask for relevant information or witnesses. Investigate as soon as you can. Speak to witnesses before they forget and think whether evidence needs to be secured quickly (eg, emails that might be auto-deleted or CCTV that might be wiped).

Always investigate enough to know all the facts, even if they seem obvious, and to clearly explain to the employee under scrutiny exactly what you think they have done. But don't go on 'fishing expeditions'. Keep the investigation confidential and don’t imply anyone’s guilt through your words or actions.

If possible, have a different person conduct the investigation from the person who’ll decide on the disciplinary action. Don’t invade anyone’s privacy. So, except in extreme circumstances, there should be no hidden surveillance. Don’t read personal documents or emails and don’t break data protection rules. The Information Commissioner's Office has more information on data protection. 

Sometimes it helps to ask the employee questions but make it clear that any investigatory interview is not a disciplinary hearing. The employee can respond to the allegations later.

Interview the witnesses

Keep all interviews private and tell witnesses any conversation must stay confidential. Try not to put words in people’s mouths, so ask open questions. Get someone else to take notes and, if possible, get the witness to sign the notes or a statement to confirm they agree with its contents.

If a witness asks for anonymity, try to talk them out of it. It’s possible to use anonymous evidence (eg where a witness is worried about reprisals) but you’ll need to put special safeguards in place.

Decide whether to take formal action

Before taking any further formal action, review the evidence and think about whether a better course would be quick private chat, to explain what the problem is and what formal action you'll take if the employee doesn't respond in the right way but do not threaten dismissal.

If you go for an informal approach, after the conversation, always put a note on the employee's HR file or send them an email confirming the chat.

If the problem occurs again, you can still take formal action later, but you can't normally re-open an incident you've already dealt with informally.

If there is no case to answer, then confirm to the employee that your investigation has finished and that no further action will be taken. If they were suspended, then confirm they should return to work.

If evidence justifies further action then you will need to arrange a disciplinary hearing.

Poor Performance

Why are performance management processes important?

Effective management of employee performance delivers business benefits such as improved productivity and morale and avoids legal problems if under-performance arises. Robust performance processes and records help you defend employment decisions like pay reviews, bonuses and promotions. Following set performance processes ensures consistent treatment and transparency, so helps avoid claims of discrimination.

Bad management of poor performance can be grounds for an employee grievance or even for a claim based on constructive dismissal. Poor performance can be a lawful reason for dismissal but only if the process is correctly handled.

Setting and enforcing the standard

In general, the employer can decide what standards apply and these can be challenging. However, targets must not be impossible to achieve.

Take care to ensure that you are applying standards consistently across different teams. Watch out for 'soft' and 'hard' appraisal graders and make sure the comparison is fair.

A tricky but important issue is deciding how long to give the employee to improve between warnings. The nature of the problem will determine what timescale is given, but it must be fair and achievable. In sales roles targets, you will need to consider the normal sales 'lead time'.

Use regular feedback meetings between formal performance discussions to keep the employee on track.

Good performance management practices

Poor performance should be managed within an overall performance management framework. Don’t just react to problems. Take time to make your expectations clear from the outset. Written policies, rules and objectives can help.

Always set objectives that are S.M.A.R.T. – Specific, Measurable, Achievable, Realistic and Timed. Give frequent informal feedback – good and bad. Have a regular appraisal system with benchmarked standards to aid consistent grading.

A link between pay and performance can be a powerful incentive but make sure your appraisal processes are robust.

Tackle problems early and decisively. Ducking difficult messages just stores up problems and can create legal issues. Consider using a professionally written invitation letter if you decide to hold a poor performance hearing.

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