Employer’s disciplinary rules should specify clearly and concisely the required actions and conduct of the employees to ensure the efficient and safe performance of work by the employees and the relationship between the workforce and the management.
The rules should be set out clearly in writing and be readily available to the staff. It is the responsibility of the management to ensure that the employees are aware of the rules and that they know and understand them and the consequences of breaching them. In particular staff should know the types of offence that could warrant the termination of their employment and those in particular that could amount to gross misconduct and summary dismissal. It is usual for employers to provide a non-exhaustive list in order to be able to indicate a type of conduct that is unsatisfactory.
It is advisable for employers that the disciplinary rules should be made contractual so that a breach of the rules will also be a breach of contract.
The rules are implemented by way of a disciplinary procedure. It is advisable that employers make the procedure non contractual so that the employer, within reason, can retain as much flexibility as possible.
The employer’s disciplinary procedures, when followed, should comply to a minimum standard with the latest ACAS Code of Practice on Disciplinary and Grievance Procedures. Failure to do so could otherwise indicate unfair dismissal and/or leave the employer responsible for an uplift in damages of up to 25%.
Disciplinary procedures are also sometimes used to deal with performance and capability issues and persistent ill health. Some employers elect to have separate polices in relation to capability and ill health to ensure that the appropriate level of care is taken by the employer prior to taking the decision to dismiss an employee, ensuring any such dismissal is fair in all the circumstances and is not deemed to be discriminatory.
The Employment team at Dutton Gregory can advise both employers and employees in all aspects of disciplinary action, from drafting procedures and assisting employers to fairly follow them to assisting employees faced with disciplinary action defend their position.