Misconduct is unfortunately a common event in any business, and employers need to be prepared in order to effectively manage these situations and initiate the disciplinary procedure if there’s a case to answer – but employers don’t always get it right…

Due to alternative engagements or workload, employers can find it difficult to allocate the necessary time needed to conduct the disciplinary procedure properly. Unfortunately this can lead to common mistakes. Here are the 5 we most regularly come across in our work with employers…

  1. Not following the disciplinary policy or ACAS Code of Practice

The Acas Code of Practice provides key steps which should be followed when conducting a disciplinary or grievance procedure. Both the ACAS Code and the employer’s disciplinary procedure need to be followed.

Unreasonable failure to comply with the Code can result in a maximum of 25% uplift of the award, or a procedurally unfair dismissal if dismissal is the end result.

  1. Not informing the employee of the allegations, or including new allegations in final stages of the disciplinary

The employee should be made aware of the allegations and be provided with a copy of all the evidence prior to the disciplinary hearing, so that they have the opportunity to prepare and give their account of events or any mitigating circumstances.

The allegations must be kept consistent throughout the process and only the investigated allegations should be taken into consideration when deciding the outcome or sanction.

  1. Not conducting a sufficient investigation and not documenting it

Although there are no specific rules relating to the extent of the investigation, an employer should conduct the ‘necessary’ investigations to establish the facts. This should include talking to the alleged employee, obtaining statements from witnesses and collecting any evidence.

When conducting the investigation, it’s important to take notes and document any meetings you hold with witnesses or the accused employee, as you’ll need evidence to rely on when deciding the outcome.

  1. Imposing an unreasonable sanction

Before deciding what sanction to impose, or whether to impose one at all, employers should remind themselves of the possible outcomes stated in their disciplinary procedure and only impose sanctions available to them.

When deciding whether an outcome was fair, an employment tribunal considers whether the outcome was a reasonable response to the employee’s misconduct.

  1. Not appointing a suitable officer

The individual conducting the disciplinary investigation and hearing should be impartial. It’s best to appoint two different people to carry out these two processes – although that may not be practical for small businesses.

Similarly, if possible, the officer chairing the appeal should not have been involved in previous stages of the disciplinary process, and should have the authority to overturn the disciplinary decision if necessary.