Performance, Misconduct and Discipline

Performance, Misconduct and Discipline

It is vital that, as an employee, you are aware of, and comply with, standards of conduct and performance expected of you in the workplace. Employers need to be able to address issues of misconduct and poor performance in order to be able to grow and run a successful business.

Nevertheless, this does not allow your employer to act unreasonably or inappropriately with starting a disciplinary or capability procedure against you, or when issuing disciplinary sanctions. Your employer should have written procedures setting out how they will deal with issues of misconduct or poor performance. Some employers have a disciplinary procedure that covers misconduct as well as poor performance issues.

Essentially, your employer must behave fairly in matters of discipline or poor performance, follow a fair procedure and respect any statutory rights you have. Very often these rules can be confusing for employers – as well as for you as an employee – and so it can be helpful to take advice as soon as possible to better understand your legal position if your employer looks to take disciplinary action against you following an investigation.

Frequently Asked Questions

The following are some of our most frequently asked questions when it comes to disciplinary action and procedures.

My employer dismissed me because I was late. Can they do that?

Whether a dismissal on grounds of lateness is fair depends on a variety of factors. These include:

  • The reasons for your lateness
  • How often you are late
  • What steps your employer took to investigate your lateness
  • Whether you had been warned about lateness in the past
  • What your employment or employer’s staff handbook says about lateness

For example, if you are continually late because you fail to wake up early enough, you have been warned to improve your punctuality and your employer’s staff handbook lists persistent lateness as misconduct, your dismissal is more likely to be fair than if you suffer from a recognised condition which affects your timekeeping ability or you have not had any prior warnings.

If you have less than the required two years’ continuous service with your employer, it would be difficult for you to challenge your dismissal at an Employment Tribunal unless circumstances suggested it was due to a protected characteristic, such as disability, or was automatically unfair.

When would I get a written warning rather than a verbal warning?

There are a number of factors that may influence whether you would receive a written warning as opposed to a verbal warning.

In most cases, the most relevant factors will be how extreme your misconduct was warranting a warning and the terms of your employer’s staff handbook or contract of employment. Both these factors are strongly linked as, for example, many staff handbooks will list types of conduct which may warrant an immediate written warning. Some employers do not have a verbal warning as part of their disciplinary procedure and a written warning may be given even for a first instance.

A written warning will usually be for more serious breaches on your part, whereas a verbal warning procedure may be used for relatively minor things, such as occasional lateness. However, a verbal warning is likely to still be recorded on your personnel file and your employer’s staff handbook may treat it as the first step in their disciplinary process. This means that it may be relied on by your employer to justify further disciplinary action against you if you are found still committing the misconduct in the near future.

Can someone come to my disciplinary meeting with me?

In most disciplinary situations, you will only have the right to be accompanied by a trade union representative or work colleague to any disciplinary hearing with your employer. While some employers will allow you to be accompanied by someone other than a trade union representative or work colleague, you should be aware they have no legal obligation to do so in most cases. There can be exceptions if you are disabled or if English is not your first language and you would have difficulty in following the meeting.

Must an employer investigate allegations before taking disciplinary action?

Your employer must investigate any alleged wrongdoing on your part before taking disciplinary action. However, the level of investigation may vary depending on the circumstances of the offence you are alleged to have committed.

Being caught red-handed committing misconduct is unlikely to require as detailed and as expansive an investigation as being accused of having committed some wrongdoing that you dispute and for which there may be contradictory evidence. However, any attempt by your employer to completely bypass the investigation stage is likely to render any subsequent dismissal unfair.

I am not well. Can I say no to attending a disciplinary meeting?

Attendance at your disciplinary meeting is a highly crucial part of your employer’s investigation into you; often because you are the individual best placed to explain why you acted in a particular way and so on. So it is always advisable to attend your disciplinary meeting as it is your opportunity to explain or defend your actions.

However, if you are genuinely too ill to attend your disciplinary hearing, your employer should re-arrange the hearing until you are better. Your employer should only be required to re-arrange your hearing if there are good reasons for them to do so.

My disciplinary hearing went badly. Can I appeal?

The Acas Code of Practice on Discipline and Grievance is a statutory document which stipulates that if you are facing disciplinary action on grounds of misconduct or poor performance, you must be allowed the right to appeal against the outcome.

For example, if you feel the employee handling your disciplinary hearing improperly disregarded key evidence, they are someone you have had trouble dealing with in the past or they did not allow you to explain your actions, these could be grounds for your appeal.

In the interests of fairness, your appeal should usually be heard by someone senior to the employee dealing with your disciplinary hearing.

Can I be called into a meeting to discuss my performance without notice?

Performance issues should be dealt with informally at first, as part of day-to-day management by your employer. Your employer can meet with you informally without notice to discuss any performance issues, but any warnings given at this stage should be informal, and should not form part of your disciplinary record.

However, if the issues cannot be resolved with informal discussion, your employer may decide to take formal action against you under their capability or performance management procedure. This will usually involve several formal meetings between you and them, during which your performance will be discussed. 

In this case, your employer should write to you setting out their concerns about your performance, the reasons for those concerns, and the likely outcome for you if, following a formal meeting with you, they decide that your performance has been unsatisfactory. The letter should specify the date, time and location of the formal capability hearing, and you should have enough notice of the meeting to enable you to prepare for it.

Can I bring someone with me to my performance appraisal?

You do not have a statutory right to be accompanied at your performance appraisal or performance review, although there is nothing to stop your employer granting this right if they wish to do so. Your right to be accompanied extends only to meetings that may result in disciplinary action being taken against you. 

You do, however, have a statutory right to bring a companion with you to any formal capability meetings, and this can be a colleague or a trade union representative. Sometimes an employer will allow you to bring a companion who is not a colleague or a trade union representative, such as a friend or family member, but they do not have a legal obligation to do so.

My manager treats me unfairly over work targets. What can I do?

If you feel that you are being treated unfairly, or that you are being bullied or harassed by your manager (and the matter cannot be resolved informally), you should raise a formal grievance in accordance with your employer’s grievance procedure. Your employer should then investigate and address your concerns, and will hopefully resolve them by taking any appropriate action.

Whilst poor performance is a potentially fair reason for dismissing an employee, your employer must still act reasonably, and follow an appropriate fair procedure before deciding whether or not to dismiss you. If the issue is not resolved by the grievance process, and formal disciplinary or capability proceedings are raised against you which ultimately result in your dismissal, it may be the case that you would be successful in an unfair dismissal claim, if the employer’s decision to invoke the procedure was flawed.

Alternatively, you might be able to resign and claim that you have been constructively dismissed, if your employer’s conduct is serious enough. However, the circumstances in which you might succeed in such a claim are limited, and you should take legal advice before resigning.

Back at work after illness, I am struggling. How should my employer help?

If you are suffering from a medical condition, and you believe that this is contributing to any performance issues which have been raised, it is important that you make your employer aware of this fact as early as possible.

In this situation, your employer should look for further information about your health, and to this end they may wish to obtain a medical report on your condition from your GP or from an occupational health practitioner. This report should help them understand your condition, the impact it has on your work, and how they might help you perform your job to the required standard.

If a formal performance management or capability procedure has been invoked, you should ask your employer not to make any decision under the procedure until they have had the opportunity to review and consider the contents of the medical report.

If you are returning to work following a period of sickness absence, you should work with your manager to identify any adjustments which might make your return to work a little easier, such as:

  • Phased return to work
  • Varying your start and finish times
  • Additional training
  • Alteration/reallocation of duties
  • Adjustment of targets, or
  • Purchasing equipment or software that might help you in carrying out your duties

Your employer should also consider whether your medical condition falls within the definition of a disability set out in the Equality Act 2010. Under the Act, a person is disabled if they have ‘a physical or mental impairment that has a long-term substantial adverse effect on their ability to carry out normal day-to-day activities’. Under disability discrimination law, your employer may have a duty to make reasonable adjustments to help you overcome difficulties caused by workplace arrangements.

Following my performance warning, should my employer be helping me improve?

Yes. The purpose of a capability or performance management procedure is for your employer to address the concerns regarding your performance, and consider ways in which you can work together to improve your performance to an acceptable level. As part of this process, your employer should consider whether you would benefit from any additional assistance, training or changes that they feel will help you improve your performance.

How can Thorntons help?

At Thorntons, we have a dedicated Employment Law team, who are able to help you in relation to all issues of discipline or capability at work, and can provide guidance and advice if you find yourself the centre of a disciplinary or poor performance investigation.

Call us on 03330 430 350 to find out more about our services, or complete our online enquiry form and we will contact you.

Depending on your case and circumstances, the first step is usually to arrange an appointment to come into one of our local offices to meet an Employment Law Solicitor to discuss your situation and the way forward. We will outline your options and, depending on your circumstances, we can look at various funding options to help with your case costs.

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