1. Understand how to manage disciplinary processes in relation to health and social care or children and young people’s settings 1.1 Explain how legislation, organisational policies and procedures relate to disciplinary processes. Disciplinary rules and procedures provide guidance to employees on the standards and conduct expected of them and a mechanism to deal with the consequences of failing to meet such standards.
The Employment Act 2002 (Dispute Resolution) Regulations 2004 provide that all employers must have a standard three-step procedure dealing with both disciplinary issues and grievances. This procedure is a minimum standard; employers may use their own procedure, provided it contains the mandatory three-step procedure as a minimum.
The Employment Rights Act 1996 and Employment Rights (Dispute Resolution) Act 1998 require that details of the disciplinary procedures must be given to employees along with their statement of terms and conditions of employment within two months of starting work. The statement should also indicate a person to whom employees can appeal if they are dissatisfied with a disciplinary decision and the manner in which the appeal should be made.
Whilst the legislation requires a minimum standard procedure, it is good practice to include information on a number of issues listed below. This makes it easier to handle disciplinary matters when they arise and ensures consistency. Disciplinary rules and procedures should describe how the following issues will be handled: absence
health and safety
use of company facilities
The principal features that should be contained in a disciplinary procedure are outlined in the ACAS Code of Practice on disciplinary practice and procedures at work.
1.2 Analyse the relationship between disciplinary and regulatory processes. Disciplinary situations include misconduct and/or poor performance. Regulation as highlighted above including the ACAS Code of Practice set out the basic principles of fairness in the regulatory processes and should be included in the formulation of policies, and followed.
Fairness and transparency are fundamental and should be promoted by developing and using policies and procedures for handling disciplinary and grievance situations. These should be set down in writing, be specific and clear.
Where some form of formal action is needed, what action is reasonable or justified will depend on all the circumstances of the particular case. Employment tribunals will take the size and resources of an employer into account when deciding on relevant cases and it may sometimes not be practicable for all employers to take all of the steps that are laid down.
That said, whenever a disciplinary or grievance process is being followed it is important to deal with issues fairly. There are a number of elements to this: Employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions. Employers and employees should act consistently.
Employers should carry out any necessary investigations, to establish the facts of the case. Employers should inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made. Employers should allow employees to be accompanied at any formal disciplinary or grievance meeting. Employers should allow an employee to appeal against any formal decision made.
2 When a disciplinary issue is alleged, there are three main processes to be undertaken; namely:
2. Disciplinary Hearing
3. Appeal Hearing
Each of the above three steps should be undertaken by three different managers where possible in order to optimise fairness towards the process. This can sometimes prove difficult in smaller companies but every attempt must be made to uphold fair process.
Given the culture these days of “No Win – No Fee” solicitors, the majority of employers have legal expenses cover that allows them to be guided through all employment issues by professionals who have the expertise in employment law. Owners/managers are advised to use this service for even the smallest employment issue as not following due process can prove costly for employers. In addition, these experts and the advice they give are non-biased and in accordance with current employment legislation.
1.4 Define practice which would be considered as:
performance issues that may lead to disciplinary proceedings gross misconduct
A performance management system will help managers regularly review performance and identify problems early on. In most cases action can be agreed between the manager and employee to remedy any problems at the earliest opportunity. Performance issues can be varied and should not be confused with conduct issues.
Support and coaching
Support and coaching by managers will help employees understand possible options for improving performance and take the necessary action. Under-performance may have a variety of causes and some of them may be outside the individual employee’s control. It is therefore important to discuss any problems carefully with employees so that practical solutions can be agreed. Often an Enhanced Development Plan is used to support employees. This is a clear plan over a period of two to three months with progress meetings at least fortnightly.
Having that difficult conversation
Regular reviews and support will help minimise under-performance. Nevertheless there may be occasions when, despite adequate support, an employee’s performance consistently fails to reach the required standard. Where this is the case managers must not duck the issue. Line managers must be prepared and ready to have difficult conversations with their team members and will need to have been trained to do so. If an organisation does not have the expertise to carry out this sort of training there are a number of external providers.
Where informal approaches fail you may decide to take more formal action which could eventually result in dismissal if employees fail to make the necessary improvement. Where this is the case it is essential that we always follow our disciplinary procedure. Procedures should take account of the minimum requirements set out in the ACAS Code of Practice on disciplinary and grievance procedures.
Gross misconduct is behaviour, on the part of an employee, which is so bad that it destroys the employer/employee relationship, and merits instant dismissal without notice or pay in lieu of notice. (Such dismissal without notice is often called ‘summary dismissal’.)
It is strongly advisable to give employees a clear indication of the type of behaviour that is considered to be gross misconduct. This can be stated in the contract of employment itself or in a staff handbook. Identifying such behaviour in advance will help to demonstrate later on that you regard it as significant. Gross Misconduct can be: Abuse of residents
Intoxication (whether from drink or drugs)
Fighting or other physical abuse
Serious breaches of health and safety rules
Offensive behaviour (such as discrimination, harassment, bullying, abuse and violence) and Gross insubordination.
Depending on the circumstances, where Gross Misconduct is alleged, disciplinary procedures are still followed however, the decision may be made to suspend the employee immediately (on full pay) whilst the incident is investigated. Suspension is regarded as a neutral act but also removes the risk of the alleged perpetrator remaining in the workplace.
1.5 Explain the different approaches used to manage performance issues and gross misconduct. Managing employees’ performance is a continuous process. It involves making sure that the performance of employees contributes to the goals of their teams and the business as a whole. The aim is to continuously improve the performance of individuals and that of the organisation. Good performance management helps everyone in the organisation to know: what the business is trying to achieve
their role in helping the business achieve its goals
the skills and competences they need to fulfil their role
the standards of performance required
how they can develop their performance and contribute to the development of the organisation how they are doing
when there are performance problems and what to do about them.
The performance management process is a positive process and if approached in the correct manner the employee involved should regard the process as management being supportive and not management criticising their work performance. Employees will react differently when the management performance process is initiated; some believe that it is a process that eventually leads to their dismissal.
In my experience, good managers have an ability to manage staff that produces the best outcomes for the employee(s). Managing individuals and the approaches used therefore vary depending on the characters and personalities involved. Where an employee appears to show negativity towards a performance management process, understanding the reasons and discussing their negativity would be recommended if the process has any chance of succeeding.
Approaching and dealing with Gross Misconduct issues can also vary. In certain circumstances we must firstly calm the situation and remove any risk of further incidents i.e. suspension of the employee. As stated above suspension is regarded as a neutral act and allows management time to investigate such incidents.
Thorough investigate is absolutely necessary; Managers must deal with facts and not be drawn to gossip or hear-say. The employee must be dealt with fairly and due process must be followed diligently. Having dealt with each step of the process many employers and their legal advisors will refer to the “Burchell Test”.
In the Burchell case, the judge said that what the employment tribunal had to decide was not whether the employee was actually guilty of misconduct or not, but instead was:
1. Whether the employer actually believed that the employee was guilty of misconduct, 2. Whether it had reasonable grounds on which to base that belief, and 3. Whether it had carried out as much investigation as was reasonable in the circumstances of the particular case. The “Burchell test” is sometimes shortened to a genuine belief, on reasonable grounds, after a reasonable investigation.
4. Be able to manage the outcomes of a disciplinary process. 4.3 Evaluate own practice in the disciplinary process.
As the owner of the care home I am always mindful of my practice in the disciplinary process whether I am involved or not. Where I am not directly involved with the Investigatory or Disciplinary process I will always review the witness statements and investigation reports to ensure that a thorough process has been followed. If I see that certain questions have not been answered I will ask that this be revisited to clarify any concerns that could be open to interpretation.
Timely action on obtaining witness statements and investigation is paramount. My prime objective is to determine the facts and I only determine the facts through the statements and follow up investigations; I will never act on hear-say or passing comments and I will always seek to clarify witness statements to eradicate misinterpretation.
I promote and practice fairness and transparency throughout the process and will always afford the employee their legal entitlements during the process which I have highlighted in my answer to 1.1 above.
As the owner I have access to our Legal Expenses Team who will guide me through each stage of the process. The experts offer employment law advice based on current legislation and other information based on recent rulings in tribunals and the like. As such their advice is non-biased and is given on the information they have been given.
When holding Investigatory or disciplinary hearings, I believe my persona is professional at all times. When needed I will endeavour to make the employee feel relaxed and calm before proceeding. My manner is calm and I will refrain from becoming frustrated where maybe an employee is trying to evade or avoid the question being asked. I will not be redirected away from seeking clarity and will always focus in obtaining the information I require before moving on. If information is given that contradicts previous statements or other witness statements I will try to seek clarity and the facts.
I will ensure that the whole process is carried out in accordance with our policy and procedure in a timely manner and that those involved are not under any stress that they may endure as a result of the process for any longer than they need be.