How to Conduct a Disciplinary Process - Best Practices

Disciplinary process, is often the bane of a company's existence. It's time consuming and mistakes can be very costly if the process is carried out badly.

On top of that, the name of the process itself "disciplinary" has bad connotations and implies punishment.

It's important to recognise early in the proceedings that "disciplinary" is usually not about punishing an individual but enabling them to correct their behaviour to benefit themselves and the company.

This is a simple best practice guide to conducting effective disciplinary action, it is compliant with UK law - if you are operating in another country, please consult your own labour laws to ensure that all steps are compliant with the law.

Pre-Disciplinary

It's important not to just jump straight in with disciplinary proceedings, many issues can be solved with a quiet word when the issue arises.

You should address behaviours and not the individual, and have an outcome in mind before you have that quiet word though.

And after having that word, you should document the outcome and give a copy of that to the employee and keep a copy on file.

For example; Susan is consistently late. You speak to her, and tell her that her lateness is causing issues for the team who have to pick up her workload in the interim before she comes in to work, you ask if she has any problems that you should be aware of that prevent her from coming to work on time, she says there are none. You ask her to be punctual in the future, and inform her that if she is not you may have to take action.

It should take only a minute or two to document this. It is important to document all actions that may later result in disciplinary action because:

1. It establishes that you have tried to resolve the issue informally (which may be important later if the employee sues due to the disciplinary process)
2. It establishes that you have tried to find the root cause of the problem and offer assistance

Disciplinary Proceedings

If an issue persists you will need to take action, before you do so. You must:

• Identify the behaviour/performance that is causing the issue
• Identify the solution you require
• Identify the timescale in which this can be reached (in your opinion), this timescale must be reasonable - the law does not allow for you to make impossible demands at this stage, so expecting someone to triple their sales, for example, overnight is not going to be considered reasonable

1. Invite the Employee to a Hearing

• You need to give your employee written notice of a disciplinary hearing, this must be presented to them 24 (working) hours before the hearing.
• You must inform them of the matter to be addressed and you must inform them of the right to representation.

Representation can be either a colleague within the organisation or a union representative, you may (if you choose) allow other representation if these are unavailable but it is not required that you do so. You may not unreasonably prevent a colleague from being a representative.

The representative should be informed that they are not to act as a "defence counsel" but rather are there to offer support, to take notes of the proceeding and to ask for clarification at any point throughout the proceeding.

2. Hold the Hearing

Don't hold the hearing on your own, the company should have a second representative present to take notes and record the outcome.

Ideally the hearing should not be adversarial, the objective is not to punish but to enable improvement for the individual.

• You should state the issue clearly
• You should offer the individual the opportunity to respond to the issue
• You should ask whether there are any circumstances that you are unaware of that may be causing the issue
• You should ask if there is any specific support or training you can offer to help the individual to overcome the issue
• You should ask what timescale the individual believes is necessary to overcome the problem

You should not attack or ridicule the individual in anyway, you must concentrate solely on the issue in hand.

After this is done, you should...

3. Pause the Hearing

It's time for a break, let the individual employee go for a coffee with their representative while you decide what action to take.

You should decide several things.

Do you need to take action at all? It is possible that new information has come to light and you need to investigate other issues instead of this one.

If you do need to take action, do you need to take legal advice before doing so? There are some very difficult areas in labour law, if the individual is part of a protected group, is pregnant or is ill - you should take legal advice before proceeding, some illnesses are classified as disabilities under the DDA and other similar problems are not - you can hold off on a decision until you have taken this advice.

If you are going to take action, determine: What action is required from the individual, specific, measurable instructions are required here. What support/help/training you will offer to enable the individual to achieve the target required. And what timescale this is required in. And finally, what stage of the disciplinary process you will invoke.

4. The Stages of Disciplinary Action

The law is quite clear that you do not have to exhaust every step on the ladder and you may choose (based on the severity of the problem) to start at any stage, including dismissal if the issue has been found to be gross misconduct.

1. Informal Warning - the mildest step and the first port of call for minor performance issues, despite being informal you must still document this warning and not rely on a verbal exchange as being satisfactory
2. Formal Warning - often referred to misleadingly as the "written warning", usually the second step in the process but you can start here for more serious issues
3. The Final Written Warning - this is the last step before dismissal and either the third step in the process or for very serious issues that fall just shy of gross misconduct
4. Dismissal- this should only be used after all other possibilities have been exhausted or for gross misconduct

Note: You must follow the whole procedure again, from start to finish each time you wish to proceed to the next step of the disciplinary process, you cannot just issue warnings without hearings, notification, etc.

Before returning to the hearing you should formalise both the actions required and the action taken in writing, so that the employee can sign for the result during the final part of the process. You MUST include in the letter, the right to appeal as the employee has the legal right to challenge any disciplinary action to a higher level of management. You should retain a signed copy of this letter in the employee's file.

5. Resume the Hearing

The employee and their representative should be called back to the hearing, and made aware of the decisions. You should ask the employee to sign for receipt of the letter detailing the actions taken and required of the, you need to stress the right to appeal and to offer any assistance that may be needed from management to enable the employee to succeed.

Except in the case of dismissal, you should thank the employee for taking part in the process and wish them success in their endeavours to resolve the issue.

6. Follow Up

After the hearing, you must follow up to ensure that the employee has met their targets in the agreed timeframe and if they have not you should start further disciplinary action.

It is not acceptable to ask someone to improve in a week, and then follow up 6 months later and continue the process. This is not fair to the business or the individual.

Many managers fear the disciplinary process rather than seeing it as an effective tool for correcting behaviour.

It is in fact simple and straightforward to deliver effective disciplinaries and the process can be a valuable one.

The penalties, for non-compliance are mild in some cases and severe in others. A dismissal that has not been conducted in accordance with this process, is automatically considered to be "unfair" at tribunal in the UK and this will increase any awards made to the individual substantially.

All staff, even those with less than 1 years service, are protected by the requirements of the process - though you may use a truncated process for those staff with less than a year's service by starting at a higher level than for staff who already have full employment rights.

If in any doubt, before making a decision under a disciplinary process - you should consult a legal or HR professional, but in the vast majority of cases this will be unnecessary.

Disimissal should always be seen as the worst option, it is expensive to recruit and train new staff, the process is there to correct behaviours to maximise value for both the employee and the business.