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Performance, Misconduct and Discipline in the Workplace

Poor performance, misconduct and absence cost your business money in terms of lost productivity and management time. It is, therefore, important that these sorts of issues are recognised early and action is taken swiftly.

However, poor management of these issues could easily result in claims of unfair dismissal, constructive dismissal and discrimination. Therefore, they should be handled carefully and where appropriate in accordance with the ACAS Code of Practice on Discipline and Grievance and the Equality Act 2010.

Workplace procedures and systems

Putting procedures and management systems in place can help employers handle employee disciplinary, absence and capability issues that may arise, including: 

It is inevitable that performance issues will arise from time to time. However, with the right performance management systems and procedures in place – from effective performance appraisal and development reviews to a formal performance management process – you can ensure performance issues are dealt with fairly and effectively. These will also reassure employees that any problems will be handled properly, with extra support available to them if they are finding it difficult to meet the demands of their job.

If an employee proves incapable of carrying out their job to the required standard, for example because of their level of competence, health or qualifications, you would potentially have a fair reason for dismissing them on the grounds of their capability. But before you do so, it is vital that you follow a fair and consistent procedure and have given them the opportunity to improve.

The key elements of a fair procedure include:

  • A proper investigation
  • Making the employee aware of the problem
  • Setting SMART objectives (Specific, Measurable, Achievable, Realistic, Time Limited) and giving them a reasonable timescale to improve
  • Providing support and training where appropriate, and
  • Monitoring progress and reviewing

A performance management/capability policy gives you and your managers a constructive framework for dealing with employees who are failing to achieve a satisfactory level of performance at work. Such a procedure is intended to be corrective rather than punitive, helping to make sure that an individual who might be struggling at work is given any additional training or support they need.

Lost days of work due to absence cost UK businesses average of £16 billion every year, both in terms of lost productivity and management time. It can also be damaging to team morale when employees are regularly having to cover an absent colleague’s workload, leading to stress on them. A fair and effective management process can dramatically reduce absence rates while supporting staff and looking after their welfare at the same time.

Early intervention and regular communication with absent employees is key to effective absence management. Ignoring regular short-term absences or an employee on long-term sickness absence will not solve the problem and can lead to frustration for all parties.

An absence management policy sets out your sick pay arrangements and what is required from your employees in terms of notifying and providing evidence of incapacity. It also provides a procedure for you and managers to follow to manage persistent short-term absence or longer-term incapacity consistently. This can include obtaining medical evidence, considering alternatives for rehabilitating the employee into work and ultimately providing a fair procedure for dismissal if this is the appropriate course of action.

An absence management policy should recognise the different approaches required when dealing with short-term or long-term sickness absence, as well as reflect the needs of disabled employees in compliance with the Equality Act 2010.

Disciplinary procedures should inform employees of the standard of conduct expected of them, as well as what happens if they fail to meet these standards.

Hopefully disciplinary issues only arise infrequently and with the right disciplinary procedures in place, you can ensure issues of misconduct are dealt with fairly and promptly.  Many minor cases can be dealt with informally, but with more serious cases, action under your formal disciplinary procedure may be required. 

In order for any disciplinary sanction to be reasonable, a fair procedure must be followed. This should include:

  • A thorough investigation
  • Making the employee aware of the allegations against them
  • Giving them an opportunity to respond
  • Allowing them to be accompanied by a trade union representative or colleague at disciplinary hearings, and
  • Giving them the right to appeal

The ACAS Code on Disciplinary and Grievance must also be taken into account.

A comprehensive disciplinary procedure will give you and your managers the confidence to make the right business decision, knowing that you are going about things in the right way.

Our training on handling disciplinary hearings and investigations can also give you confidence when dealing with disciplinary issues. We can provide support, either helping you to prepare for or attending at disciplinary and appeal hearings.

Gross misconduct is misconduct that is so serious that it entitles the employer to dismiss the individual with immediate effect without notice and for a first offence.  As it is an extreme sanction, it should only be used rarely and in appropriate situations. You should always take advice before dismissing an employee for gross misconduct.

To ensure employees know what is expected of them, you should include in your disciplinary procedure a non-exhaustive list of examples of what you consider count as gross misconduct reflecting the nature of your business. You should make clear that the list is not exhaustive.

How can Thorntons help?

Our experienced specialist employment lawyers provide practical advice to businesses dealing with disciplinary, absence and capability matters. Whether your workforce is unionised or not, we can work with you to achieve a satisfactory outcome for all involved in a workplace dispute, using a variety of methods including mediation and negotiation where required.

We can prepare, implement and review disciplinary, capability and absence procedures for you, tailoring them to your business needs, as well as ensuring they are fully compliant with the relevant ACAS codes and guidance and the Equality Act 2010. 

We can also provide training to you and your managers, giving you all the tools you need to ensure you are equipped to manage any issues that arise with your employees.

In most employment situations taking legal advice early on can often stop the situation from escalating and will save you time and money later. With our proactive and commercial advice Thorntons Employment Law team can help to find the right solution for you. Give one of our team a call on 03330 430 350 , or complete our online enquiry formand we will contact you.