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Navigating a disciplinary process in
the coronavirus era

Disciplinaries - Websit
Disciplinaries can be a difficult experience, for both the employee and employer.

As many businesses found themselves managing a remote workforce almost overnight, the idea of conducting a disciplinary procedure may be a worrying prospect for many people managers.

Before we talk about how to handle disciplinaries in the "new normal", a few tips about preventing them.

Communicating with your remote employees

Communication is by and large the most important thing here. As your employees may be working from home, keeping in contact is vital for ensuring they are comfortable with their working conditions, workload and coping with the difficulties that can arise from working from home.

It also allows you to monitor their performance and make it clear what you expect from them. Ask your employees to send regular update emails about how they are progressing with tasks and projects.

These updates should include details about completed tasks, outcomes and anything they may be having trouble with. It also gives them an opportunity to take on additional work if they have the capacity.

Having this clear line of communication will give you a means of assessing employees’ productivity and provides incentive for employees to keep on top of their workload.

Informal Warnings

If you are still facing an issue with an employee, you may want to consider giving an informal warning.

Informal warnings fall outside the formal disciplinary procedure and involve having a quiet word with the employee about the problem, which can, of course, take place over a video call.

In a lot of cases, an informal warning is all you need to resolve an issue. As well as giving a warning, these meetings should also provide an opportunity to offer support, guidance and advice to encourage change.

In the conversation, you should:

• Explain how and why their conduct or performance is causing a problem
• Establish why the problem is occurring
• Seek to agree on a way of ensuring the problem doesn’t continue.

Even though a meeting may be informal, the manager should keep a record of it. The record should show the date and time the meeting took place, the key points discussed and the fact that there was no formal outcome.

Remember to give a copy of the note to the employee and add it to their personnel file.

Disciplinary proceedings

Disciplinaries should always be the last resort. Before starting the process, you should carry out a full investigation process.

If your concerns are regarding poor performance from a remote employee, you should first compare the individual’s performance with their past performance in the office. Their lack of productivity may be partially due to issues linked with working remotely, such as unsuitable space, mental health issues or care responsibilities.

If this is the case, the employee should receive support and training where necessary. If you dismiss the employee without offering this support, you may face an unfair dismissal claim against your company.

Unfortunately, there will be circumstances where you have to go ahead with a disciplinary process. This can be carried out remotely by sending a disciplinary letter via email and conducting the investigation and meetings via video call.

How to conduct a disciplinary meeting

Step 1: Presenting the case

All meetings in the disciplinary process can be, and are being, conducted via online video servcices such as Zoom, Microsoft Teams and Google Meet.

The initial hearing meeting should open with the person chairing the meeting talking the attendees through the hearing process and ensuring that all parties present understand the procedure.

You must explain the allegations against the employee and take the individual through the evidence that has been gathered. 

Step 2: Response from the employee

The employee must be given the opportunity to set out their case and answer any allegations that have been made.  You should also give them a reasonable opportunity to ask questions, present evidence and call relevant witnesses. 

Where the employee, or the organisation, intends to call relevant witnesses, each party must give advance notice that they intend to do so, and it is their responsibility to ensure that their witnesses can attend.     

Employees are entitled to be accompanied at a disciplinary hearing, but their companion may not answer questions on their behalf.

Step 3: Adjournment

In some cases, further investigations may be required. An adjournment takes place (either during or at the conclusion of the disciplinary hearing) to allow such investigation to take place before a decision is reached.

Step 4: The Decision

Before making any decision, careful consideration should be given by the panel to the seriousness of the offence and account should be taken of:


  • Any explanation offered by the employee;
  • Their length of service;
  • Their disciplinary and general performance record;
  • How similar cases have previously been dealt with;
  • Whether support or assistance would be more appropriate than dismissal.

Depending upon the significance of the offence, you can hand out a final written warning even if previous written warnings haven’t been given.  In cases of gross misconduct or in exceptional circumstances, you have the right to dismiss the employee without a previous written warning. Gross misconduct is when their actions have had, or are liable to have, a serious or harmful impact on the organisation. 

Step 5: Confirmation

If you decide to take formal disciplinary action, you should inform the individual of the decision verbally and in writing. You should also notify them that they have a right to appeal against the decision. 

The disciplinary procedure should specify the period of time in which a decision will be made. You should aim to reach a decision within five working days of the disciplinary hearing.

The employee should be informed of the reasons for the dismissal, the date on which the contract will end, the period of notice, and information about their right to appeal.

If you decide not to dismiss the employee, they will be re-instated and should be treated as if the dismissal did not take place.

Formal Warnings

In the case of misconduct or unsatisfactory performance, it is typical to give the employee a written warning.

A further act of misconduct or failure to improve performance within a set period (eg six months) would normally result in a final written warning.

If an employee’s misconduct or unsatisfactory performance is sufficiently serious, it may be appropriate to move directly to a final written warning. This might occur where the employee’s action had, or is liable to have, a serious or harmful impact on the organization.

For misconduct or poor performance, the warning should set out:


  • The nature of the misconduct or poor performance
  • The change in behaviour or improvement in performance that is required within a set period (e.g. six months)
  • The consequences of further misconduct or a failure to improve performance within the set period
  • The employee’s right to appeal against the warning
  • The length of time that the warning will remain “live” on the employee’s file.

Appeals

The employee has the right to appeal any decision taken under the disciplinary procedure.

If they do wish to appeal, they must inform their line manager and/or the chairperson who held the disciplinary hearing. This must be provided in writing within five working days from the date of the decision and include details of the grounds of their appeal. 

You will then need to arrange an appeal hearing, which should be conducted by a person who has not previously been involved in the case if possible.

New representations, arguments or evidence can be presented by both parties.

As with the initial hearing, the employee is entitled to be accompanied.

The individual should be given the opportunity to lay out their case, explain why they appealed the decision and suggest areas of further investigation to be carried out before the appeal decision is reached. 

Following the appeal hearing and any resulting investigations, you will, again, need to inform the employee of the final decision both verbally and in writing.

If their appeal is unsuccessful, the dismissal date given in their dismissal letter will still apply.

Records

Once the disciplinary process is concluded, all that is left to do is make a confidential record. This must include:


  • The complaint.
  • The defence to the complaint.
  • The findings made and actions taken together with the reasons for such actions.
  • The outcome of any appeal.
  • Any subsequent developments.

If you need advice about an ongoing or forthcoming disciplinary or if you’re looking to have the procedure managed and chaired by an impartial third party, get in touch today and we will be happy to help.

You can email us at info@holgatehr.co.uk or call 0191 236 1459



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