In order to ensure fair and effective treatment of disciplinary matters and to avoid liability for unfair dismissal, it is advisable for a company to adopt a formal disciplinary procedure that can be followed when a disciplinary rule appears to have been broken. A company should have a separate procedure to deal with cases of sickness absence, and may wish to have a separate procedure to deal with cases of poor performance that are due to lack of capability rather than lack of application. (The management of performance issues, including absence, is dealt with elsewhere in this Guide ( Managing performance ).)
The ACAS Code stresses the importance of everyone in an organisation understanding the disciplinary procedure, and suggests that it may be appropriate for large organisations to provide training in the use and operation of the procedure. There can be benefits, the Code says, to undertaking such training on a joint basis.
The ACAS Code advises that procedures should be kept under review to make sure they are always relevant and effective.
Special provision may need to be made in the disciplinary procedure to handle disciplinary matters amongst workers whose working hours or location causes logistical problems, such as nightshift workers and workers in isolated locations or depots. Companies may wish to contact their Association for advice on this (EEF Associations).
The procedure may also need to be modified to accommodate any disability that a worker may have by, for example, altering the arrangements for the disciplinary hearing. A failure to consider reasonable adjustments to the disciplinary procedure could amount to unlawful discrimination under the Disability Discrimination Act 1995 (duty to make adjustments ). It may be necessary to arrange for translation facilities if the worker who is being disciplined does not have English as his or her first language. If the worker has difficulty reading, the employer may need to explain the procedure, and any letters it sends, orally.
The ACAS Code points out that disciplinary action against a union official (e.g. a shop steward) can lead to a serious dispute if it is seen as an attack on the union's functions. It is unlawful for a company to penalise an employee for union activities (discrimination during employment ). The Code suggests that, if it proves necessary to apply the disciplinary procedure to a union official, the case should be discussed, after obtaining the employee's agreement, with a senior trade union representative or full-time official. Companies may wish to contact their Association for advice if they are considering taking disciplinary action against a union official.
The ACAS Code advises that disciplinary action should not automatically be taken if an employee is charged with, or convicted of, a criminal offence unrelated to work. The employer should establish the facts of the case and consider whether the matter is serious enough to warrant starting the disciplinary procedure. The main consideration should be whether the offence, or alleged offence, makes the employee unsuitable for his or her work. It is likely to be unfair to dismiss an employee on the ground that he or she has been convicted of, let alone simply charged with, a criminal offence, if the offence does not affect the employee’s suitability for the work he or she does. In particular, it is very likely to be unfair to dismiss an employee for a criminal conviction that is ‘spent’ under the Rehabilitation of Offenders Act 1974 (spent convictions ). The ACAS Code also states that an employee should not be dismissed solely because he or she is absent from work as a result of being remanded in custody.
Care should be taken to ensure that disciplinary action does not amount to unlawful discrimination. It would, for example, be unlawful under the Disability Discrimination Act 1995 to discipline a disabled employee for a reason relating to his or her disability, unless disciplinary action was justified in all the circumstances (disability discrimination). It would also be a breach of the Sex Discrimination Act 1975 to discipline an employee for a reason connected with her pregnancy or maternity. If a company decides to monitor its employment practices to ensure that they are not affected by conscious or unconscious race, sex or disability bias (monitoring ), it may wish to include the conduct and outcome of disciplinary proceedings in that process.
Special considerations may arise where a disciplinary offence is linked to drug or alcohol abuse. Companies may find it helpful to refer to the policy on alcohol and drugs which covers the relevant issues (Alcohol and Drugs Policy ) including rules on the use of alcohol and drugs. It also suggests that where an employee has broken a disciplinary rule for reasons linked to the use of drink or drugs, it may be appropriate to suspend the disciplinary process for a time, in order to investigate whether the employee has a medical problem that is amenable to treatment. There is also a separate policy on alcohol and drugs testing.