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Employee Performance, Misconduct and Discipline

It is vital that, as an employee in Scotland, you are aware of, and comply with, standards of conduct and performance expected of you in the workplace. Your employer needs to be able to address issues of misconduct and poor performance in order to be able to run a successful business. However, this does not mean they can act unreasonably or inappropriately over disciplinary or capability procedures, or when issuing disciplinary sanctions.

Essentially, your employer must behave fairly in matters of discipline or poor performance, and should have written procedures setting out how they will deal with such issues. They must follow these fair procedures and respect any statutory rights you have.

These rules can be confusing for both employers and employees - and so it can be helpful to take legal advice as soon as possible if your employer is looking 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.

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.

In most cases, the most relevant factors affecting the type of warning will be how extreme your misconduct was and the terms of your employer’s staff handbook or contract of employment. 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, such as gross misconduct, 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 may treat it as the first step in their disciplinary process.

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 else, 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.

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 gross 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.

Attendance at your disciplinary meeting is a 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 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. 

Yes. Under the Acas Code of Practice on Discipline and Grievance, 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.

Performance issues should be dealt with informally at first, as part of day-to-day management by your employer. They 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, to discuss your performance. 

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 prepare for it.

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 want to.

You do, however, have a statutory right to bring a companion with you to meetings that may result in disciplinary action being taken against you. 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 to do so.

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 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.

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

To  find out more about your situation, your employer 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 considered 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 could help, 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.

Yes. The purpose of a capability or performance management procedure is to allow your employer to address the concerns regarding your performance, and consider ways in which you can work together to improve it to an acceptable level. As part of this process, your employer should consider whether you would benefit from any additional assistance, training or other 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 at the centre of a disciplinary or poor performance investigation in Scotland.

Call us on 03330 430350 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.

Please note we do not offer Legal Aid for this service.