From time to time employers will find they have to take action against a member of staff who does something wrong. Dealing with disciplinary matters can sometimes be a source of frustration, anxiety and stress for both the employer and the employee; therefore it is very important that organisations have an effective disciplinary policy for dealing with incidents when they occur and that managers have guidance and training in how to implement them.
There are 5 key issues to consider to ensure that you have an effective disciplinary procedure:
- Setting standards
- Taking early action
- Effective investigations
- Natural & Procedural justice
Don’t assume that employees will automatically know what standard of behaviour and conduct is expected of them. There are many personal, cultural, gender, age etc factors that affect how they behave at work. What many organisations do is have a written Code of Conduct that they go through with all new employees on their induction when they spell out just what is expected of them during their employment. It is best to focus on the positive behaviours, attitudes and conduct you want employees to demonstrate rather than a long list of negative items.
Taking early action
Misconduct is very much in the eye of the beholder; even where there is a clear Code of Conduct the application of it will vary from manager to manager and this, in itself can cause problems.
The first step for any manager when they see something they don’t approve of is to take the employee aside to a separate room or space where they can be challenged about their behaviour and asked to account for their actions. An ounce of prevention is worth a pound of cure and acting early will save many issues from developing into major problems.
There is no need or expectation that the employee has any representation and this should be a straightforward management conversation, challenging the behaviour or actions, setting the standard, giving advice, warnings about repetition etc. Wherever possible a note should be kept of the meeting but this does not need to be shared with the employee.
Inevitably different managers will have different standards; we are all used to being able to deal with ‘tolerable variations’ and adjust our behaviour accordingly so this isn’t in and of itself a particular problem.
However, when the variance between managers becomes too great it can cause real difficulties. If you want to take action against an employee and they can point to an instance where similar behaviour has gone unremarked or unchallenged the manager’s case is instantly weakened.
If an employee repeats the behaviour that has previously been challenged or does something that the manager considers to be a significant breach of the Code of Conduct then it is important to have a thorough investigation. It is here were many organisations encounter difficulties that cause problems down the line. A flawed investigation is one of the most common reasons why companies are prevented from taking firmer and more definitive action against employees. The steps to take in an investigation are:
- Ask the employee for an account of their behaviour as set out in the section Taking early action above.
- Consider suspension in all cases but if the matter is potentially Gross Misconduct then suspend them immediately. It is very difficult to dismiss someone for Gross Misconduct if they weren’t suspended when the incident occurred.
- Inform them you are starting an investigation and of their rights to be accompanied
- Sit down and write out a series of questions you want to have the answers to that you will use to guide the interviews with the employee and any witnesses. Failing to think through the questions and to properly record the answers is where many investigations falter.
- Where there is conflicting evidence go back an forth between witnesses to seek clarification.
- Write up your interviews and get them signed off by witnesses
Natural & Procedural justice
Implementing your disciplinary procedure is not a legal matter and you should be guided by the principles of natural justice:
- Has everyone had a full opportunity to have his or her say?
- Has it been done in a timely fashion?
- At the same time have people had sufficient time to consider their responses
- Be guided by, but not trapped by rules and procedure, apply some flexibility without missing any steps out
- Avoid taking a confrontational or inquisitorial approach
- Make judgements based on ‘the balance of probabilities’ not ‘beyond reasonable doubt’