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Sparing Your Firm’s Blushes: Disciplining Errant Employees

Thursday, 28 November 2013

Magic circle law firm, Clifford Chance was recently left blushing by a future trainee in an ill-judged candid camera moment.

The trainee, while being interviewed by a student reporter in the early hours, made inappropriate comments about why he enjoyed working in the city, specifically as a “City lad” stating: “I f***ing love the ladness”, and explaining, “The ladness is just basically f***ing people over for money.” 

Needless to say, this was not the sort of PR exercise advocated by a top City firm and disciplinary proceedings swiftly followed.

Not every instance of errant employees merits disciplinary proceedings quite as obviously as this so it is important for employers and employees to understand where the lines are draw.

When Can Businesses Discipline Employees?

The basic requirement for disciplinary proceedings is that the employee is guilty of misconduct. This may seem obvious with common examples such as theft, aggressive behaviour or making inappropriate remarks that bring the employer in to disrepute. It is important to note, however, that disciplinary proceedings are unlikely to be appropriate in the following circumstances:

· Underperformance

· Absence due to illness

· Whistle blowing

Prerequisites: A Written Disciplinary Procedure

Every business should have a written disciplinary procedure and make sure that staff are aware of it and know where to find it. The disciplinary procedure must meet legislative requirements and conform to best practice guidelines provided by ACAS to reduce the risk of tribunal claims.

The procedure should outline what conduct is unacceptable from employees and set out the process by which breaches of company policy will be handled.

Once established, it should be followed carefully and consistently.

ACAS Guidelines

The ACAS Code of Practice on Disciplinary and Grievance Procedures provides detailed guidance on how to structure disciplinary procedures.

It is not a legal requirement for businesses to follow the guidelines but tribunals do take them into account and failure to consult the ACAS guidance may lead to a tribunal increasing a compensation awarded to an employee who proves wrongful or unfair dismissal by up to 25%.

Procedural Summary for Employee Misconduct

Businesses unsure about their obligations should seek legal advice. If misconduct is suspected exact procedures may vary but certain core elements should be included such as:

- Investigating as soon as possible using an employee who is not connected with the claim.

- Holding a meeting to inform the employee who may be disciplined.

If a disciplinary hearing is required:

- Sending a letter to the employee concerned. The letter should outline the allegations against them and give details of the time and place of the hearing. It should state who will be present at the hearing and whether the employee can bring somebody to the hearing with them.

At the hearing:

- The chair should explain why it is happening and give the employee a chance to tell their side of the story and ask them if there is anything more they wish to say.

After the hearing:

- The employee should be informed of the decision and the reasoning behind it, and the right to appeal, in writing.

- Any action taken must be proportionate to the misconduct and consistent with similar cases.

Comment

Employment law and guidance are there to assist both employers and employees. Any failure to follow statutory procedures or ACAS guidance will make it harder and more expensive for employers to dismiss an employee when necessary, diverting attention and resources away from the business.

Employers or employees needing information or advice regarding disciplinary procedures should contact Aneil Balgobin via e-mail ABalgobin@rollingsons.co.uk or by telephone on 0207 611 4848.

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