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Disciplinary issues - advice for employers

With the introduction of the ACAS Code of Practice, employers are no longer strictly required to follow a routine three step procedure when contemplating disciplining or dismissing an employee. Nevertheless the ACAS Code of Practice provides clear guidance that a reasonable procedure must be followed when considering disciplinary action against an employee. For advice on disciplinary procedures contact our employment law expert on 01616 966 229.

Stephensons specialist employment solicitors recognise that dealing with disciplinary issues can be fraught particularly when they are connected with issues of a complicated or sensitive nature. Furthermore we also recognise that dealing with such issues can be stressful and time consuming.

Stephensons can offer you a full range of services, tailored to suit the needs of your business. Whether you require documentation drafting or simply require reassurance that the steps you are taking are legally compliant, our employment solicitors will be able to assist. Our advice will be focused on your business and aim to avoid liability for any timely and costly Employment Tribunal claims.

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Disciplinary issues FAQs

When a disciplinary issue arises, dealing with it effectively can feel like a minefield. However knowing the right steps to take can avoid a costly and time consuming Employment Tribunal claim. Below are the questions we are most often asked when an employer is faced with this situation:

We’ve just found out an employee has been other bullying members of staff. Can we delay dealing with this issue until the busy summer period is over?

Best practice is to deal with an issue as soon as it is raised. Not only does this protect the company from allegations that it failed to protect other members of staff (in this example), a delay of this length may also go against an employer if a claim of unfair dismissal is later brought to a Tribunal.

One of our managers has just told us she had been convicted of a crime. Can we dismiss her on these grounds?

The fact that an employee has been found guilty of a criminal offence does not automatically mean that she can be dismissed. Various factors need to be taken into account including the offence in question, her position within the organisation, whether or not the conviction has an impact on the company or her ability to do her job. It is best to take legal advice when considering a dismissal in these circumstances.

We don’t have a disciplinary policy. Do we still need to invite the employee to a meeting or can we make a decision without taking this step?

Even though you may not have a written policy, you still need to follow a basic fair process before deciding on the appropriate sanction (if any) to apply. A failure to do so is likely to give rise to an unfair dismissal claim. As a minimum this involves carrying out an investigation into the alleged misconduct, giving the employee notice of the allegations against them, holding a meeting to allow them to respond to the allegations and providing a right of appeal if dismissal is the outcome.

What’s the difference between an investigatory and disciplinary meeting?

An investigatory meeting is simply to put the allegations to the employee and gather their version of events. They do not have to be given notice of this meeting and there is no right to be accompanied to it. In contrast, before attending a disciplinary meeting, the employee should be given sufficient information regarding the allegations to allow them to defend themselves, should be given a reasonable period of time to consider this  and should also be advised of their right to be accompanied a colleague or Trade Union representative.

If I suspend an employee following an allegation of misconduct, do we still have to pay their wages?

Yes, otherwise the employee will be able to bring a claim that you have unlawfully failed to pay their wages. Suspension is a neutral act and therefore any absence from work whilst suspended pending an investigation should be on full pay. Reducing or failing to pay an employee’s wages whilst suspended may result in an unfair dismissal claim if it can be shown that the dismissal was pre-determined from the failure to pay wages.

Is the employee allowed to be accompanied by a solicitor to the disciplinary meeting?

The standard position is that employees have the right to be accompanied by a colleague or Trade Union representative to a disciplinary meeting. In very limited circumstances an employee may have the right to be accompanied to a disciplinary hearing by a solicitor, or a family member.

Who can hear the appeal against the decision to dismiss?

The appeal officer should be separate from the person who held the disciplinary meeting to avoid allegations of bias. If the company is small, consider instructing an independent HR consultant to deal with the final stage of the process. 

Discrimination advice for employers

Our employment law solicitors have a wealth of experience in helping employers defend themselves against discrimination claims. We can work together with representatives of your company to establish the validity of the discrimination claims, explain the options available to you and as necessary, assist you in defending the claim.

The Equality Act 2010

The Equality Act 2010 means that existing of former employees and workers can bring discrimination claims against their employers on a variety of different grounds, namely age, disability, gender reassignment, race, religion or belief, sex and sexual orientation. These grounds are known in law as protected characteristics. Claims can be raised due to the actions and/or omissions of employee's and therefore can be raised regardless of whether or not the discriminatory behaviour was conducted with the employer’s knowledge or approval.

Employees who feel they have valid discrimination claims may choose to take their employer to an employment tribunal. They must generally do so within three months less one day from the date of the act of discrimination or if there are a number of instances of discrimination, within three months less one day from the date of the last act of discrimination. If successful, they may be awarded compensation, which could cover loss of earnings and award for injury to feelings or health. Compensation awards for discrimination claims are unlimited, so employers who lose discrimination claims can often face a heavy financial penalty, depending on the severity of the alleged discriminatory behaviour or conduct.

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Sexual harassment

Sexual harassment involves unwanted conduct of a sexual nature that has the purpose or effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the recipient.

Conduct in this context can be any unwanted verbal, non-verbal or physical conduct of a sexual nature. Conduct of a sexual nature can include unwelcome sexual advances, touching, forms of sexual assault, sexual jokes, displaying pornographic photographs or drawings or sending e-mails with material of a sexual nature.

What are my obligations as an employer?

Employers are legally responsible for acts of harassment carried out by employees in the course of their employment.

However, employers have a defence to a claim for harassment if they can show that they took all reasonable steps to prevent the employee from carrying out the act or acts.

It is important to note that employers will also be liable for persistent harassment of their employees by third parties, provided certain conditions are satisfied. Liability only arises if the employee has been subjected to third party harassment on at least two previous occasions and the employer is aware that it has taken place and has failed to take reasonable practicable steps to avoid it.

The way in which an employer deals with harassment (whether by a third party or otherwise) once it has occurred can itself amount to harassment if the employer’s actions are responsible for creating a hostile environment.

What is a sexual harassment claim worth?

It is unlikely that an employee who has been the victim of sexual harassment will have suffered financial loss as a direct result of the harassment – unless the employee has resigned or been dismissed as a result. The bulk of compensation awards for harassment are usually made up of payments for injury to feelings, which is calculated by reference to the ‘Vento Guidelines’.

Tribunals can award: between £25,200 and £42,000 in the most serious cases of harassment; between £8,400 and £25,200 in cases which are serious but do not fall into the top band and between £800 and £8,400 in less serious cases of harassment.

Practical steps to reduce risk of sexual harassment

Employers need to take any potential harassment seriously. The safest approach is therefore to ensure that anything which might be construed as sexual harassment (rude jokes, rude emails, pictures of scantily-clad models etc) is not permitted.

An employer should therefore:

  1. Provide staff with an employment handbook, which includes policies on equal opportunities and harassment, setting out what constitutes acceptable behaviour and what does not
  2. Provide training on equal opportunities and harassment. This will raise awareness and may help managers to recognise and address with sexual harassment at an early stage
  3. Address any potential sexual harassment issues promptly and seriously

If you require assistance in drafting appropriate policies and procedures to reduce your company’s exposure to such claims, or you would like the policies you currently have in place to be reviewed, do not hesitate to contact a member of our employment law for businesses team on 01616 966 229

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