Navigating Disciplinary Procedures - Avoiding Common Pitfalls

Disciplinary hearings and investigations form an essential part of any workplace, acting as a corrective tool for addressing employee misconduct and performance issues whilst maintaining a just and equitable work environment.

Nevertheless, employers sometimes stumble into common errors during these processes, potentially resulting in legal repercussions such as claims of unfair dismissal.

To sidestep these pitfalls, employers must grasp and uphold fair procedures throughout disciplinary proceedings. Here are some of the typical missteps employers should steer clear of:

Ignoring the Disciplinary Policy

A common mistake for employers is that they forget to check their policies before embarking on a disciplinary process.  Employers must first review and adhere to their disciplinary policies. These policies should be regularly reviewed to reflect best practices, should outline the framework for handling disciplinary matters, and should be in accordance with the Code of Practice on Disciplinary and Grievances. Ignoring your policy can lead to accusations of unfair treatment.

Failing to Properly Train Managers

Some employers expect Managers or Supervisors to conduct Investigations or Disciplinary processes without any training, as they wrongly assume, often to their cost,  it is a straightforward process whereby you simply hand an employee a warning letter.  Failure to train your managers in how to properly conduct these processes can result in them inadvertently mishandling proceedings, leading to unfair outcomes and consequential awards against your business.

Unjustified Suspension

It is often wrongly believed that employers reserve the right to suspend an employee once they are investigating a matter. However, employee suspension should only be employed where there is a genuine risk to the business or process if the employee remains at work during the investigation. Suspension should be a measure of last resort. Employers should seek lesser options before suspending an employee; suspension should be used sparingly and in accordance with your internal policies and should always be on full pay and for as short as possible.

Absence of Impartiality

Some employers assume the same manager who conducts the investigation can also issue a disciplinary sanction. However, the person conducting the disciplinary hearing should be independent and impartial. Impartial in this context means someone previously unconnected with the issues involved, the previous stages of the process (i.e., not involved in the investigation) and it does not necessarily require a third party.  One individual cannot act as both the Judge and Jury where it can be avoided.

Neglecting to Inform About the Right to Accompaniment

Employees should be informed of their right to be accompanied by a work colleague or union representative during the disciplinary process. Legal representation is generally not required but advice should be sought where such a request is made by an employee.

Avoiding Disproportionate Sanctions

The outcome of a disciplinary process, especially dismissal for misconduct, should be carefully considered and ensure the sanction can be justified as a reasonable sanction, based on the circumstances.

Acknowledging the Right to Appeal

Employees should always be advised of their right to appeal the outcome of a disciplinary process, providing them with a chance to challenge any perceived injustices.

Ensuring an Impartial Appeals Process

The appeal process should be conducted by someone who was not previously involved in the disciplinary process to ensure impartiality.

In conclusion, every employer should have a robust disciplinary policy in place and must follow it diligently. Failure to do so can lead to a higher risk of successful unfair dismissal claims, which can be costly and damaging to your organisation's reputation.

By adhering to fair procedures, making, and keeping good notes/records, and avoiding common mistakes, employers can ensure that disciplinary hearings and investigations are conducted fairly and legally, contributing to a more harmonious and productive workplace.

As always, for advice and guidance on navigating your way through disciplinary processes, don’t hesitate to get in touch with the team MSSTheHRPeople.

By Hugh Hegarty