disciplinary procedures

Question: Can an agreement hold even though employment procedures were not followed, especially as no minutes were made available for agreement and there was no other written record of what went on at the meeting? Does the way in which this matter was handled contravene Human Rights Legislation of 1999?

Sophie Fordham, Jft's legal adviser, answers: Outlined below are the main aspects of the disciplinary process.

Why have disciplinary procedures?
Clear and consistent disciplinary procedures are good practice in the workplace. They help to promote fairness and consistency in the treatment of individuals.

A tribunal will consider whether a fair procedure has been followed as evidence to support its decision. The disciplinary procedure should state in writing, the type of disciplinary action and penalties, which can result from unacceptable conduct or performance.

In what context should the disciplinary procedure be invoked?
Disciplinary procedures should not be seen primarily for imposing sanctions. They should be seen as a way of helping and encouraging the employee to make improvements to the standards and conduct at work.

It is good practice to attempt to solve the problem in a less formal manner in the first instance. If this approach fails then the more formal disciplinary procedure may be appropriate.

The legal obligations of the employer
The Employment Rights Act 1996 requires the employer to provide written information to their employees about certain aspects of the disciplinary procedure.

All governing bodies of maintained schools have a duty to establish disciplinary rules and procedures and ensure that they are made known to staff. It is the responsibility of the headteacher to manage the disciplinary procedures as part of his or her professional duties and to ensure that proper levels of staff performance are established and maintained.

Codes of practice
ACAS are empowered to produce codes of practice on disciplinary rules and procedures. The codes provide employers with practical guidance on how to draw up and effectively operate disciplinary rules and procedures.

Breach of the ACAS codes does not render the employer liable to the proceedings, but a failure to follow the code will be taken into consideration by the Employment Tribunal (ET). In deciding on whether a dismissal is unfair the ET is primarily concerned with the fairness of the procedures followed by the employer prior to the dismissal.

ACAS guidelines on what should be included in disciplinary proceedings:

• State the type of action and penalties which can result from unacceptable contact.
• Have a clear timetable for dealing with disciplinary matters.
• Give full details of the disciplinary offence. Investigate the alleged disciplinary offence before disciplinary action is taken.
• If suspension of the employee, during the investigation, is considered necessary, it should be on full pay and for as short a period as possible.
• Allow employee to be accompanied by colleague or union representative.
• Allow workers to put their case before a decision is made. Unless in the case of gross misconduct, not to dismiss on first offence.
• Provide the worker with the right of appeal. Indicate the type of offence that would be considered gross misconduct.

Suspension
Both the headteacher and the governing body have the right to suspend any member of staff if they consider they should be excluded from the school. The LEA must be informed immediately. The decision to re-instate the teacher must be made by the governing body.

The DfES recommend suspension in the following circumstances:

• Where children are at risk.
• Where employees need protection themselves.
• here the allegations amount to gross misconduct.
• Where the school's reputation might suffer unduly.
• Where the presence of the employee many impede investigation.

A typical disciplinary procedure will have the following stages:

1. A formal, oral warning in the case of a minor offence.
2. A written warning for subsequent minor offences or a more serious offence.
3. A final written warning for further misconduct. The warning should make it clear that dismissal may follow failure to comply.
4. Dismissal with appropriate notice will follow if there is insufficient improvement.

Misconduct
Conduct, which is sufficiently serious that it requires disciplinary action. In order to warrant dismissal, misconduct must be extremely serious, or repeated on more than one occasion. Misconduct can include persistent lateness, unauthorised absence and failure to meet known work standards.

Gross misconduct
This is the term used for serious misconduct, which may lead to instant dismissal (that is, summary dismissal). Acts that constitute gross misconduct are those resulting in a serious breach of contractual terms and will be for the organisation to decide in the light of their own particular circumstances. They might include the following:

• Theft, fraud or deliberate falsification of records.
• Physical violence.
• Serious bullying or harassment.
• Serious insubordination.
• Serious incapability brought about by alcohol or illegal drugs.

Employers should give their employee plenty of examples of what they consider to be gross misconduct to ensure that they understand the type of behaviour they consider unacceptable.

In the case of gross misconduct employers should suspend workers (on full pay) and carry out an investigation.

Types of warning

First warning Oral:
In the case of a minor infringement the worker may be given a formal oral warning. Workers should be told of the reasons of the warning, that it is the first step in the disciplinary process and that they have the right of appeal.

Written:
If the infringement is regarded as more serious, the worker may be given a formal written warning, giving the details of the complaint, the improvement required, the timescale allowed for this and the right of appeal. The warning should also state that a final written warning might be considered if the desired change doesn't occur.

Final written warning
Where there is failure to improve the behaviour, or an infringement which is considered sufficiently serious, the worker may be given a final written warning. This should include details of the offence, that failure to improve may result in dismissal and the right of appeal.

Dismissal or other sanction
If the behaviour remains unchanged then the sanction imposed may include, disciplinary transfer, disciplinary suspension, demotion, loss of seniority, loss of increment (provided these penalties are provided for in the contract) or dismissal.

The decision to dismiss must be taken by the appropriate manager and the worker should be informed as soon as is reasonably practicable and how to make an appeal. The decision to dismiss must be confirmed in writing and workers with at least one year's continuous employment have the right on request to have a written statement of particulars of reasons for dismissal.

Recording
Employers will record all written warnings. Any disciplinary action taken should be disregarded after a specified period of time. The normal practice is that severity of the action taken will take different periods of time before they are disregarded. ACAS have proposed the following guidance:

• Warnings for minor offences may be valid for up to six months.
• Final warnings may remain in force for 12 months or more.

Once the time limits have been passed, warnings should be disregarded in any further disciplinary proceedings. These records should be kept confidential and retained in accordance of the disciplinary procedure and the Data Protection Act 1998, which requires the release of certain data to individuals on their request.

Appeals
The opportunity to appeal against a disciplinary decision is essential to natural justice. Appeals should be dealt with as promptly as possible. The time limit usually set for lodging appeals is five working days.

Individuals should be informed of arrangements for appeal hearings and also of their right to be accompanied. The individual should be informed of the result of the hearing as soon as possible and this should be confirmed in writing.