27th January 2017
Disciplinary issues at work need to be nipped in the bud early to prevent them escalating. However, they also need to be dealt with fairly to avoid the risk of a disgruntled employee bringing a tribunal claim. This is particularly so where the need for disciplinary action arises because of something the employee has done at a social occasion, such as the office Christmas party, the company summer BBQ or a charity event.
Many employees do not realise that when they attend social events organised by their employer this can be viewed as an extension of their employment, and therefore if they behave inappropriately their employer will be entitled to discipline them. Many also do not realise that what they do can impact on their employer because, while they are at a work-based event, their employer may be liable for the consequences of their actions.
If an employee has behaved in an inappropriate or unacceptable way, for example by harassing colleagues, turning up to work the next day while under the influence of drink or drugs or has posted offensive or derogatory remarks about a colleague or business contact on social media, then this will be a disciplinary issue.
Some disciplinary issues are so serious that they justify immediate dismissal without notice; these include theft, violence and deliberately causing harm to an employer’s property. Other disciplinary issues are less serious and require a more staged approach, for example a verbal warning accompanied by some guidance, followed by a first written warning, final written warning and ultimately dismissal if the unacceptable behaviour persists.
Dealing with the fallout from a social event, where an employee’s judgement may have been seriously impaired because of their consumption of alcohol, can be especially problematic. Careful consideration will need to be given to the nature of the unacceptable behaviour and its consequences for both other employees and the business itself. There are some types of behaviour that will justify a warning and others that will justify dismissal.
An example of behaviour which might justify dismissal on the grounds of gross misconduct includes the posting on social media by an employee of highly offensive remarks concerning fellow employees or managers or customers and suppliers of the business.
Whatever the severity of the issue, it is important that as an employer you follow a fair procedure before deciding on the appropriate sanction, up to and including dismissal. This applies even in cases of gross misconduct.
The procedure you follow should be that set out in your disciplinary procedure, a copy of which should be made available to all members of staff when they start work with you. Regard should also be had to the Acas Code of Practice on Disciplinary and Grievance Procedures which provides practical guidance on handling disciplinary and grievance situations in the workplace and which stresses the need for every stage of your disciplinary process to be fair and reasonable.
If either party unreasonably fails to comply with the provisions of the Acas code, this can be taken into account by the employment tribunal in any subsequent claim for unfair dismissal and can result in any award, made against the employer or in favour of an employee, being adjusted by up to 25 per cent.
The general procedure to be followed where disciplinary action is contemplated is:
The initial investigation should be used as an opportunity to find out exactly what has happened. The person you appoint to carry out the investigation should not be the same person who will ultimately decide what, if any, sanction should be imposed.
If, after the initial investigation, you decide that an employee’s behaviour may justify disciplinary action, you need to arrange a formal disciplinary hearing. The employee should be given prior notice of when the hearing will take place and be provided with full details of the allegations against them and any evidence. They should be given a reasonable period to prepare for the hearing and told of their right to ask a colleague or trade union representative to accompany them.
At the disciplinary hearing the employee should be given a chance to respond to the allegations made against them and to present their version of events.
After the hearing, you will need to go away, reflect on what has been said and decide what you should do. You need to weigh up the evidence and ensure that the sanction you decide to impose reflects the severity of what has happened. You also need to ensure that the sanction is consistent with what you have done in the past with employees who have behaved in a similar way unless there are clear distinguishing factors. For example, if you have previously given employees who have fought with one another during the company’s summer BBQ a final written warning, it would potentially be unfair to decide to instantly dismiss an employee who has done the same thing.
Once a decision has been made, the employee should be informed of this in writing as soon as possible and given reasons. They should also be advised of their right to appeal the decision.
If you have decided to give a written warning, you should tell the employee how long the warning will last for and what the consequences will be if there is further misconduct while the warning is still live. For example, if you have decided to give them a first written warning, this might be followed by a second written warning and then dismissal.
If the employee decides to appeal the decision you will need to hold an appeal hearing. The employee should be given a chance to explain why they think the decision you have made is wrong. They should be allowed to bring a colleague or trade union representative along with them and have the right to be informed about the decision you have reached following the appeal, which as a matter of best practice should also be confirmed in writing.
It is important that at all stages of the disciplinary process you take notes of what you have done, why you have done it and what has been said so you can demonstrate that a fair procedure has been followed.
It is important to handle disciplinary proceedings fairly at any time of the year, but especially in the aftermath of a social event where employees may be unaware that their actions could have ramifications at work. A comprehensive disciplinary procedure will help, as will reminding employees of expected standards of behaviour and conduct in the run up to any social event at which colleagues, customers or suppliers may be present. A short memorandum, attaching your equal opportunities policy and reminding staff how to behave, including guidance on alcohol consumption and transport to and from the event, should make your position clear.
For a confidential discussion about disciplining employees, or any other employment law issue, please contact Sarah Everton at Myers & Co Solicitors in Staffordshire on 01782 525012 or email email@example.com.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.