ACAS Code of Practice – Part 2 Disciplinary

Facing the Sack?! Do you know your rights?

In part 1 of this article we look at the ACAS Code of Practice, what it means and why it’s important.

Our Guide to the ACAS Code of Practice – Part 2 Disciplinary – tells you “What you need to know”

Following our recent Part 1 article: on the basic principles of the ACAS Code of Practice, here is our next instalment which looks more closely at helping you know your rights in Disciplinary situations at work:

So, what’s important in a Disciplinary situation?

Firstly, let’s be clear that different Disciplinary situations can vary in their severity.  At one end of the scale there is a first stage warning and then at the other extremity there is being dismissed (sacked)! Your rights are principally the same, no matter what stage you’re at.

We’re going to take you through the disciplinary process in chronological steps, to help you get to grips with knowing your rights:

1.   Written rules

Your employer’s rules for dealing with disciplinary situations should be in writing and should be fair and transparent.  The Code talks about rules being ‘specific’ and ‘clear’.  It is important that everyone, from the managers leading the disciplinary process, to the employees being disciplined, should fully understand each step of the process and why it’s happening.  That’s why it’s good practice to have a Disciplinary Policy (or Procedure) clearly written down and readily accessible to all.

Question: Have you ever looked at your employer’s Disciplinary Policy? Here’s a tip, why not see if you can find it… how easy was it to find?  Then read through it… can you easily understand it?  Often the first time you might become aware of your employer’s Disciplinary Policy is when you are invited to a disciplinary meeting, or worse still if you’re suddenly faced with being sacked!

2.   Reasonableness

We have written in part 1 about always being reasonable – we can’t emphasise this enough, it is so important.  A key principle to remember is: it’s always good to behave reasonably, that applies to you and to your employer.

It’s also important to recognise that what might be reasonable for one employer, might not be for the next.  By this we mean, for example, that what is expected from a small organisation might be different from what is expected from a large, well resourced, organisation.  Whatever the action or steps taken, they should be reasonable or justified.  For example, in a large organisation it would be reasonable to expect an investigation or an appeal to be carried out by someone independent (and in the instances of appeals someone more senior) than the disciplinary decision maker.  Whereas in a small organisation, that doesn’t have layers of management, the expectations would be different.

3.   Facts

Right at the outset of any disciplinary situation, the facts should be established, without unreasonable delay (see it’s that word “reasonable” again!).

An appropriate investigation should be carried out by your employer to identify the facts and gather evidence.  If necessary, it may include an investigation meeting with you, or potential witnesses, to establish your, or any witnesses’, account of things.

Once the facts have been identified and any investigation completed, a decision should be taken as to whether there is a disciplinary issue to answer, and whether a formal disciplinary meeting is to be called.  It is imperative that any information gathered at the investigation stage is shared with you ahead of any formal disciplinary meeting.  This is important because it is fair and reasonable to allow anyone facing a disciplinary meeting the opportunity to put their side of the story or present their version of events.

4.   Meeting notification

Let’s assume that a decision has been taken that there is a disciplinary issue to answer.  Long gone are the days where you can be hauled in to a disciplinary meeting without any prior warning or worse still simply told you’re on a verbal warning!  Anyone facing a disciplinary should be given written details.  The written details need to include:

• Appropriate information about the allegations relating to poor performance or misconduct;
• The date, time and location of the proposed disciplinary meeting;
• The fact that you are permitted to be accompanied at the meeting (usually by a work colleague or a trade union representative);
• The possible consequences to you, if the allegations are upheld (e.g. you would receive a written warning)
• The information from the investigation (as already mentioned)

As well as receiving all this information in writing.  The meeting should be held without ‘unreasonable’ delay whilst still allowing you the opportunity to prepare your response to the disciplinary allegations before the meeting.  You too are expected to make reasonable effort to attend the disciplinary meeting. (are you seeing a pattern with that word yet?!) Because if you don’t attend a meeting after several reasonable attempts to re-arrange it, you may be advised that the meeting will go ahead in your absence and a decision could be made on the information available.

We have written above about the important things that should happen before any disciplinary meeting, now let’s move on to the Disciplinary meeting itself:

5.   Your right to be accompanied

All workers have a statutory right to be accompanied at a disciplinary meeting.  This means you have the right to attend a disciplinary meeting along with a fellow work colleague or trade union representative (your companion).  You are expected to be reasonable in your request to be accompanied.

If your chosen companion in not available at the time of your disciplinary meeting, your employer is expected to rearrange the meeting to a suitable date and time proposed by you and your companion.  You must make sure that it is a ‘reasonable’ request and it is within five working days of the original proposed meeting date.

During the disciplinary meeting, your companion is allowed to participate in the meeting.  By this we mean that they are allowed to sum up your case and response to the disciplinary hearer on your behalf, as well as confer with you during the meeting.  What they are not allowed to do though, is answer questions on behalf of you.  If you are asked a question, then you are expected to answer it for yourself.

6.   Knowing what the problem is

At the meeting the disciplinary hearer should explain the case against you and what the disciplinary issues are, as well as talk you through any evidence that was gathered at the investigation stage which supports the allegations against you.  You should then be given reasonable opportunity to:

• respond to the issues raised against you;
• set out your case so that you answer the allegations/issues or present any mitigation;
• present any evidence you may have in support of your case;
• ask any questions you may have; and
• call any relevant witnesses.

7.   The Disciplinary outcome

Once the disciplinary meeting has finished the decision maker will need to decide what an appropriate outcome may be.  There are several possible options: no action; a disciplinary warning or some other action (e.g. demotion).  The disciplinary outcome decision should be justified and confirmed in writing to you.

The written confirmation of any disciplinary warning should also include details of:

• What the misconduct or poor performance was
• The change in behaviour or improvement in performance required and within what timescale
• The length of time the disciplinary warning will remain live

In addition to the above and an explanation (rationale) for any disciplinary warning given, a clear expectation should be set with you as to what might happen if there is no improvement in your poor performance or if there is a repeat of the misconduct.  This would normally mean the next stage of disciplinary warning in the process, whether that is a final written warning, or dismissal (sometimes some other ‘penalty’ might be appropriate e.g. demotion).

There may be occasions where your first act of misconduct or poor performance, is so serious that it warrants moving straight to a final written warning.

8.   When the outcome is dismissal

Some acts of misconduct are so serious they represent ‘Gross Misconduct’.  This is where the outcome can be dismissal without notice.  This is even the case for a first offence, if it is serious enough.

In cases where serious allegations are made e.g. theft; physical violence, gross negligence etc it may be necessary to place you on a period of suspension.  This period will be with pay and should be kept as short as possible, while investigations are undertaken.  A period of suspension is a neutral act and does not in itself represent disciplinary action.

Your employer’s disciplinary policy should provide examples of the types of things that they consider as acts of gross misconduct.

You shouldn’t forget that it is also possible to be dismissed as a result of cumulative disciplinary warnings.  For example, if you are already on a final written warning, then the next stage in the disciplinary process would typically be dismissal.  This doesn’t mean that the disciplinary offence is any worse or more severe that the first warning, a dismissal decision is made because you’ve already used up all your other chances (the previous stages of disciplinary).

As mentioned at the outset of this article, all the above points 1-7 are as relevant at this stage of disciplinary as they are at the first stage.

9.   If you are unhappy with any disciplinary outcome

If, following confirmation of your disciplinary outcome, where you’ve been issued with a disciplinary warning or you’ve been dismissed (sacked), you feel the outcome decision is wrong or unjust, you are entitled to appeal against the decision.

You should detail your appeal in writing and send it to your employer.  Your disciplinary outcome letter should confirm the details for you.

Your appeal should be heard by someone other than the original disciplinary decision maker.  That person should, wherever possible, be impartial and unconnected with the disciplinary case.  Your appeal should also be heard without unreasonable delay and a time and place agreed with you.

As with the disciplinary meeting, you have the right to be accompanied to your appeal meeting too. And, as was the case with your disciplinary, the outcome of your appeal should be confirmed in writing to you, as soon as possible.

So there you have it, the important things you need to know if you find yourself in a disciplinary situation at work… and don’t forget we’re available via the HR Expert chat and advice facility on the website, to support you at times you find difficult at work and need that dedicated advice and support.

Tune in next time for our final instalment your rights in ACAS Code of Practice Part 3 Grievance situations at work.