Employer’s should set out the rules by which the Employees conduct will be measured and address.
It is a statutory requirement for An Employer to have a written Disciplinary Procedure although it doesn’t need to be a contractually binding on the Employer and is usually set out in the employer’s staff handbook as a policy or as a separate document available to the employees. Conversely the Conduct expected of the employee is often contractual to ensure that a breach of the rules to which their conduct is measured is also a breach of their contract of employment.
The management should be able to demonstrate that the employees are aware of the rules and that they understand the consequences of a breach of the rules and the types of offence which could result in different sanctions being awarded including what would result in dismissal and summary dismissal. It is usual for employers to provide a non-exhaustive list in order to be able to indicate what would constitute unsatisfactory conduct.
The Disciplinary Rules are enforced through the Disciplinary Procedure. it is advisable for Employers to have the procedure as non contractual policy so that the employer, within reason, can retain as much flexibility as possible.
The Employer’s disciplinary procedures when followed should always comply to a minimum standard with the latest ACAS Code of Practice on Disciplinary and Grievance Procedures. Failure to meet the minimum requirements of the Code can give rise in some circumstances to an unfair dismissal and/or result in an uplift in damages of up to 25%.
Disciplinary procedures are also sometimes used to deal with performance and capability issues as well as persistent ill health. It is usually wise for Employers to have separate polices to deal with the procedure in addressing these issues to try to ensure that any procedure which results in the termination of employment is fair in all the circumstances and does not amount to conduct capable of being discriminatory.
The Employment team at Biscoes can assist in the drafting of procedures and assisting employers to follow fair processes when dealing with disciplinary, capability or performance issues.