Every employer needs to know disciplinary procedures inside and out. However, grasping the details can leave many employers feeling overwhelmed.
Attending a disciplinary workshop customised for the hospitality industry is the perfect way to get on top of this issue. Our intern, Keri Cooper, attended a recent disciplinary workshop which we ran. She gave this review of what she learned:
What Does a Disciplinary Workshop cover
The disciplinary workshop I attended taught me what the disciplinary procedure involved, in finely tuned detail. It covered all the do’s and don’ts and made the procedure clear and easier to understand.
The workshop covered legislation as sources, such as; the Employment Act 2008, Employee Relations Act 2004, Employment Relations Act 1999, Employment Code of Practice (Disciplinary and Grievance Procedures) Order 2004, as well as European sources of employment law such as the European Convention on Human Rights.
I learned that dealing with disciplinary issues is not always black and white -reality rarely treats us to such simplicity! But the step by step approach used in the workshop allowed participants to understand even the more complex areas.
The Probationary Period
As part of what we learned about disciplinary procedures, we looked closely at the ‘probationary period’. During the three months of probation, employers have an opportunity to decide if someone can do the job long term.
If the employer is not convinced they can, then it is possible to let that employee go. However, there must be a solid reason to back up this decision.
So, I learned that there are two main things employers should know about letting probationary staff go:
- Vagueness lends weight to claims against the employer, so clarity in terms of why the employee is not up to scratch is important
- An invitation to a probationary hearing helps reduce the risk of claims
Selecting the right candidate is, of course, an integral part of any business’s success. However, sometimes the probationary period fails to identify issues of performance.
There are ways to tackle this:
- Having a standard or specialised staff contract;
- Making sure that things agreed verbally are written down, and
- Creating and using an established custom and practice in-house.
- Using a tool such as a staff handbook to cover issues like protection of rights and staff responsibilities
Written sources or reference such as these are of vital importance when holding staff to account. They provide guidelines and back up when either rights or responsibilities are breached, or if they are thought to be.
Breach of Employee Responsibility
The workshop emphasised that when an employee is in breach of their responsibilities, we need to understand the issues behind it. Most importantly, you need to understand the vital distinction between a capability issue, as opposed to one of conduct.
There are clear differences in proving and addressing capability and conduct issues. The workshop demonstrated the right ways to respond.
If conduct is the issue, formal methods of disciplinary action are not always necessary – at least to start. For example, here are two ways in which an employer can respond to minor behavioural issues:
- An informal ‘quiet word’ or
- A ‘line in the sand’ letter
However, if this approach fails to reform behaviour, or the behaviour itself warrants more formal action, the disciplinary process becomes crucial.
The Disciplinary Process
The workshop highlighted the importance of properly initiating the disciplinary process through the use of case studies, such as the case of Corus UK Ltd v Mainwaring EAT/0053/07. This case illustrated that where criticisms can be made of the way in which the employer carries out the disciplinary process, an employment tribunal is required to consider that process as a whole before deciding whether the disciplinary process was unfair. Further still, the case of British Home Stores Ltd v Burchell [1978] IRLR 379, EAT, established that absolute proof of misconduct is not necessary. The case summarised that so long as the employer has; a genuine belief that the suspect is guilty of misconduct, and that the grounds for the employer’s belief are reasonable, and that the employer has carried out as sufficient an investigation into the facts as is reasonable, then this will be considered enough.
Cases such as these thus further highlight the need to:
- Assess,
- Investigate when necessary,
- Initiate a disciplinary hearing when necessary, and lastly,
- Find the outcome.
The workshop looked closely at the investigation an employer may need to conduct to make an initial assessment of the issue:
- The need for evidence, including the use of witness statements and
- Remembering that those involved in the incident/issue must be immune from any involvement in the investigation itself.
Finally, the work shop also covered areas like the disciplinary hearing, trade union reps, the ACAS code, the “Hot Stove Rule” and even dismissal. It left participants with an understanding of and familiarity with all levels of the disciplinary ladder and beyond.
If you want to know more about handling disciplinary procedures just email us on info@FrancesGillespie-HR.com
Why not check out our blog on how to stop staff problems becoming serious disciplinary issues.