The decision to take disciplinary action is never taken lightly, especially for a small employer. Issuing a warning might affect relationships, or seem too formal for your practice.
Many of the disciplinary cases we deal with at the EAS (the BMA’s employer advisory service) are the result of performance or conduct issues not being addressed at an early stage.
Every situation is different, but whichever stage you are at in the process, there are some key factors to consider to ensure things go as smoothly as possible.
Check your policies
When you speak to us, our first point of reference will be your contract of employment. If it doesn’t contain your disciplinary policy and procedure, it should refer either to a standalone policy or to your employee handbook. This will contain information on how the process should be applied.
Follow the Acas Code of Practice
Employment tribunals are legally required to take the Acas Code of Practice into account when deciding cases. It sets out the core principles of fairness for handling disciplinary situations.
Below, our guide can help you manage the disciplinary process from start to finish.
Stage one: disciplinary investigation
The disciplinary investigation is the foundation for any disciplinary action. If it is weak, the consequences could be that a successful tribunal claim is made against your practice.
Be thorough and objective. Where possible, the investigator should act independently from the person who would decide on any disciplinary action to be taken.
Ten pointers to help you prepare:
- Compliance: throughout the disciplinary process, it’s essential to follow the Acas Code of Practice.
- Fairness: if a formal investigation is necessary, it must be fair and thorough, and the findings shared with the employee.
- Investigation: it is reasonable to ask an employee to attend an investigation meeting at short notice, and unaccompanied, unless your contract gives them extra entitlements.
- Relevance: remember to listen for relevant issues that may impact your report eg health, disability or pregnancy.
- Action: if the matter is potentially gross misconduct, you may consider suspending the employee on full pay. Please seek advice before making this decision.
- Allegations: is the issue related to work performance or conduct? Make sure you have the appropriate documents to hand.
- Policies: what relevant policies do you have in place? Eg capability, sickness absence or social media policies.
- Evidence: what relevant evidence do you have? Eg papers, email trails or CCTV. Do you need witness statements (written by the witness, signed and dated)?
- Report: compile an investigation report – short or long – detailing the allegation(s), the evidence and the conclusion. The employee will be issued with this report before the hearing.
- Conclusion: if the investigation shows there is no case to answer, write to the employee to confirm no action is to be taken and keep a copy of their file.
Stage two: disciplinary hearing
Preparing for the disciplinary hearing
Maintain professionalismRemember that disciplinary hearings are not pleasant for anyone. As an employer, you have the obligation to maintain standards in the workplace, and you have identified a significant shortfall in behaviour or performance that is – or could be – detrimental to the practice, patients or colleagues.
Gather relevant documentsYour contract, disciplinary policy, the Acas Code and other employment policies relevant to the case, eg investigation report and policies on capability, sickness absence, social media, confidentiality, etc.
Statutory rightsAn employee has the right to be accompanied to a disciplinary hearing by a colleague or a trade union official, but not family or friends, and definitely not a solicitor.
If your policy says the employee has additional rights, then seek advice. Additional discretion may be required if the employee is vulnerable or has a disability.
Read the investigation reportCheck that all the evidence is in order and prepare the questions you need answered to have a full picture.
Invitation to the disciplinary hearingIt is important to structure this carefully as ambiguous wording can undermine your case. The allegations must be clearly worded, accurate and detailed.
If there are many allegations, put them in a logical group. Statutory and contractual entitlements need to be clearly worded, together with the possible outcomes from the hearing.
Give at least three working days’ notice of the hearing.
Document packGive the employee the investigation report and access to all the relevant evidence in good time before the hearing.
Make the time to be thoroughAllocate enough time without the risk of interruptions, and have a note-taker present so that you can focus on the hearing and listening to the individual.
At the disciplinary hearing
IntroductionsOpen the meeting by introducing the people present and their roles – the chair who will make the decision, the note-taker, the employee and their representative, if there is one.
Explain that the purpose of the meeting is to consider the allegations and whether disciplinary action is appropriate. Set the expectation that a decision will not be made on the day.
Check that the employee has received all the documents and had time to review them.
Allegations and responsesAsk open questions and listen to the answers. Keep control of the hearing and have a break if tensions rise.
Explain that you will take each allegation in turn and ask the employee for their response. You may ask follow-up questions for clarity, and you may challenge on the basis of the evidence. The note-taker will record the answers.
Ask the employee if there is anything else they would like to add.
Concluding remarksThank the employee and representative for their contributions. Confirm when you will be able to make a decision, and that it will be recorded in writing.
After the disciplinary hearing
Ensure you write up the minutes promptly and consider your options given all the circumstances, including:
- prior warnings
- consistency with previous disciplinary outcomes
- the gravity of the offence
- any new evidence from the hearing.
Then make your decision. You must decide between:
- no case to answer
- verbal warning
- written warning
- final written warning
- dismissal (with or without notice).
The next step is to confirm your decision in writing and give the right of appeal.
Stage three: appeal hearing
If they decide to appeal, it should be dealt with impartially. Wherever possible, by a manager or partner who has not been involved in the case before.
If you are a single-handed GP or only have a few partners with a ‘flat’ management structure, this can be a challenge. If you contact the EAS, we can advise you on your options.
Our advice to prepare for the appeal hearing is the same as the disciplinary meeting.
You should also review the appeal letter before hand, check that the evidence is in order and prepare your questions.
At the appeal hearing
IntroductionsAfter the introductions as set out above, explain the purpose of the hearing. There may be either a review of the disciplinary sanction or a re-hearing, depending on the grounds of the appeal.
Say how it will be conducted and explain the decision-making remit of the chair. Set the expectation that a decision will not be made on the day.
Ask the employee why they are appealing. Appeals may be raised on many grounds, such as new evidence, undue severity of the disciplinary sanction, procedural unfairness, or inconsistency with previous disciplinary decisions. Keep the questions open and listen to the answers.
If there is any new evidence, ensure the employee has the opportunity to comment on it. You may ask follow-up questions for clarity.
Ask the employee if there is anything else they would like to add.
Concluding remarksSummarise the facts and thank the employee and representative for their contributions. Confirm that the decision will be in writing and give a timescale.
After the appeal hearing
- Write up the minutes promptly.
- Inform the employee of the result of the appeal and the reasons for it as soon as possible. If the decision is the final stage of your appeal procedure, you should say so in your appeal decision letter.
- Consider changing the previous decision if it was not soundly based.
- Appeals should not be used to impose any increase in penalties.
A settlement agreement is a legally binding contract that can be used to end employment on agreed terms.
It is one way of handling difficult employment situations.
Your employee waives their right to make a claim against your practice in a court or tribunal, in return for payment and an agreed reference.
There are legal risks and pitfalls involved, so it is essential to follow the Acas Code of Practice.
You should always seek advice from the EAS before speaking to your employee about a possible settlement.
How the EAS can help you
We can support you through the process with tailored advice.
Our advisers will:
- coach you on how to open negotiations with your employee, and what you should and should not say
- help you structure your settlement offer appropriately
- review your letters to ensure compliance with Acas requirements
- review reports and communication to ensure your decision is reasonable and message clear
- advise you on your negotiations
- provide you with a draft settlement agreement once an agreement in principle has been reached
- assist if complication arrive eg due to non-attendance or poor conduct.