Informal action

Cases of minor misconduct or unsatisfactory performance are usually best dealt with informally. A quiet word is often all that is required to improve an employee’s conduct or performance. The informal approach may be particularly helpful in small firms, where problems can be dealt with quickly and confidentially. There will, however, be situations where matters are more serious or where an informal approach has been tried but is not working.

If informal action does not bring about an improvement, or the misconduct or  unsatisfactory performance is considered to be too serious to be classed as minor, employers should provide employees with a clear signal of their dissatisfaction by taking formal action.

Formal action

Inform the employee of the problem

The first step in any formal process is to let the employee know in writing what it is they are alleged to have done wrong. The letter or note should contain enough information for the individual to be able to understand both what it is they are alleged to have done wrong and the reasons why this is not acceptable. If the employee has difficulty reading, or if English is not their first language, the employer should explain the content of the letter or note to them orally.

The letter or note should also invite the individual to a meeting at which the problem can be discussed, and it should inform the individual of their right to be accompanied at the meeting The employee should be given copies of any documents that will be produced at the meeting.

Hold a meeting to discuss the problem

Where possible, the timing and location of the meeting should be agreed with the employee. The length of time between the written notification and the meeting should be long enough to allow the employee to prepare but not so long that memories fade.

The employer should hold the meeting in a private location and ensure there will be no interruptions.

At the meeting, the employer should explain the complaint against the employee and go through the evidence that has been gathered. The employee should be allowed to set out their case and answer any allegations that have been made. The employee should also be

allowed to ask questions, present evidence, call witnesses and be given an opportunity to raise points about any information provided by witnesses.

An employee who cannot attend a meeting should inform the employer in advance whenever possible. If the employee fails to attend through circumstances outside their control and unforeseeable at the time the meeting was arranged (eg illness) the employer should arrange another meeting. A decision may be taken in the employee’s absence if they fail to attend the re-arranged meeting without good reason. If an employee’s companion cannot attend on a proposed date, the employee can suggest another date so long as it is reasonable and is not more than five working days after the date originally proposed by the employer. This five day time limit may be extended by mutual agreement.

Decide on outcome and action

Following the meeting the employer must decide whether disciplinary action is justified or not. Where it is decided that no action is justified the employee should be informed. Where it is decided that disciplinary action is justified the employer will need to consider what form this should take. Before making any decision the employer should take account of the employee’s disciplinary and general record, length of service, actions taken in any previous similar case, the explanations given by the employee and – most important of all – whether the intended disciplinary action is reasonable under the circumstances.

It is normally good practice to give employees at least one chance to improve their conduct or performance before they are issued with a final written warning. However, if an employee’s misconduct or unsatisfactory performance – or its continuance – is

sufficiently serious, for example because it is having, or is likely to have, a serious harmful effect on the organisation, it may be appropriate to move directly to a final written warning. In cases of gross misconduct, the employer may decide to dismiss even though the employee has not previously received a warning for misconduct. The final written warning should normally be disregarded for disciplinary purposes after a specified period (for example 12 months).

First formal action – unsatisfactory performance

Following the meeting, an employee who is found to be performing unsatisfactorily should be given a written note setting out:

• the performance problem;

• the improvement that is required;

• the timescale for achieving this improvement;

• a review date; and

• any support the employer will provide to assist the employee.

The employee should be informed that the note represents the first stage of a formal procedure and that failure to improve could lead to a final written warning and, ultimately, dismissal. A copy of the note should be kept and used as the basis for monitoring and reviewing performance over a specified period (eg six months).

First formal action – misconduct

Where, following a disciplinary meeting, an employee is found guilty of misconduct, the usual first step would be to give them a written warning setting out the nature of the misconduct and the change in behaviour required.

The employee should be informed that the warning is part of the formal disciplinary process and what the consequences will be of a failure to change behaviour. The consequences could be a final written warning and ultimately, dismissal. The employee should also be informed that they may appeal against the decision. A record of the warning should be kept, but it should be disregarded for disciplinary purposes after a specified period (eg six months).

Final written warning

Where there is a failure to improve or change behaviour in the timescale set at the first formal stage, or where the offence is sufficiently serious, the employee should normally be issued with a final written warning – but only after they have been given a chance to present their case at a meeting. The final written warning should give details of, and grounds for, the complaint. It should warn the employee that failure to improve or modify behaviour may lead to dismissal or to some other penalty, and refer to the right of appeal.

Dismissal or other penalty

If the employee’s conduct or performance still fails to improve, the final stage in the disciplinary process might be dismissal or (if the employee’s contract allows it or it is mutually agreed) some other penalty such as demotion, disciplinary transfer, or loss of seniority/ pay. A decision to dismiss should only be taken by a manager who has the authority to do so. The employee should be informed as soon as possible of the reasons for the dismissal, the date on which the employment contract will terminate, the appropriate period of notice and their right of appeal.

It is important for employers to bear in mind that before they dismiss an employee or impose a sanction such as demotion, loss of seniority or loss of pay, they must as a minimum have followed the statutory dismissal and disciplinary procedures. The standard statutory procedure to be used in almost all cases requires the employer to:

Step 1

Write to the employee notifying them of the allegations against them and the basis of the allegations and invite them to a meeting to discuss the matter.

Step 2

Hold a meeting to discuss the allegations – at which the employee has the right to be accompanied – and notify the employee of the decision.

Step 3

If the employee wishes to appeal, hold an appeal meeting at which the employee has the right to be accompanied – and inform the employee of the final decision.