Disciplinary Procedures 

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Disciplinary Procedures

Summary

Disciplinary procedures are aimed at improving employees' behaviour. All employees need to be aware of the reasons for disciplinary rules and the consequences of breaking them. Managers need to feel confident that they can operate the procedure satisfactorily and in a timely manner when the need arises.

Questions and Answers

Question
What makes a disciplinary procedure contractual or non-contractual? What are the implications for employers?
Answer
Where a disciplinary procedure is expressly stated to be so, it will be contractual.
Potentially, there may be circumstances where a disciplinary procedure has become implied into the contract by reason of custom and practice. For a custom and practice to become contractual it must be reasonable, well known and sufficiently precise.
The implications for employers will primarily be seen in relation to breach of contract claims. If an employee has been dismissed without the contractual disciplinary rules having been followed, that employee may be entitled to claim damages arising from that breach.

Question
We have an employee facing disciplinary action based on allegations of theft. He was suspended on full pay, but just before the disciplinary hearing submitted a sick note for four weeks. The reason for the sickness is stress. What should we do?

Answer
Employees should be given a reasonable opportunity to attend a disciplinary hearing in accordance with the rules of natural justice (see above), and should have an opportunity to be heard in response to the disciplinary charges. Having received the sick note stating that the employee is unfit to attend work due to stress, it would be advisable to adjourn the hearing until after the four-week period. If, however, this is followed by a further sick note, you should deal with the matter as you would any sickness absence. It would be reasonable for you to make investigation into the precise nature of the illness and seek a medical opinion as to when the employee is likely to be well enough to return. A doctor could certainly be asked to advise as to whether the employee is well enough to attend a disciplinary hearing, notwithstanding his unfitness to carry out his normal job. It would be wise to check whether attendance at the disciplinary hearing is likely to exacerbate the employee's condition.

Key Facts

• Employers should follow the recommendations in the Acas Code of Practice to ensure that a fair procedure is followed.
• Suspension prior to a disciplinary hearing must be on full pay (unless the contract permits suspension to be unpaid), otherwise the employer risks a claim for unlawful deduction from wages.
• To refuse an employee the right of appeal would be in breach of the principles of natural justice and the recommendations contained in the Acas Code of Practice on Disciplinary and Grievance Procedures.