What exactly does a disciplinary procedure consist of?

A disciplinary procedure plays a vital role in managing productivity and particularly any staff members who are either underperforming or misbehaving.

Here we take a look at what a legally compliant disciplinary procedure looks like.

Why do employers need disciplinary procedures?

A disciplinary procedure is necessary to ensure that all disciplinary concerns are addressed, whether it’s employee conduct or capability that is causing workplace issues. A strong but fair disciplinary procedure also helps maintain workplace standards through the application of disciplinary measures in a reasonable and consistent manner in accordance with the principles of natural justice and fair procedures.

What is the legal position?

One source of law is the Workplace Relations Commission (WRC) Code of Practice on Grievance and Disciplinary Procedures. This Code of Practice states that grievance and disciplinary procedures should be in writing and presented in a format and language that are easily understood.

In addition, the Code of Practice states that a copy of the disciplinary procedure should be given to all employees when they begin employment and that management, supervisory personnel and employee representatives should be fully aware of and adhere to the terms of the disciplinary procedures.

Under the Unfair Dismissals Act 1977-2015, employers must give staff notice in writing of the procedure that will be followed before and for the purpose of dismissing an employee. This notice should be given no later than 28 days after the employee begins work.

To see what these legal requirements look like in practice, let’s take a look at what an effective disciplinary procedure consists of below.

What is the purpose of a disciplinary procedure?

A disciplinary procedure enables employers to deal with situations where employees aren’t meeting the required standards or rules as outlined in their contract of employment, the company handbook, and other relevant documentation. This may apply to their specific job description, the culture embedded across the business, and other legal requirements.

A disciplinary procedure protects the rights of the employee too by ensuring they are given a hearing before sanctions are considered. For employers, a strong disciplinary procedure helps ensure you comply with your legal obligations before confirming a decision to dismiss an employee.

What to include in a disciplinary procedure?

When drafting a disciplinary procedure, you should clearly outline each stage of the process. The document should highlight the consequences an employee will face if found to be in breach of any business policies, as well as other potential circumstances that could give rise to suspension with pay pending investigation.

Generally, each stage of the process should be progressive. The following stages form part of a typical disciplinary procedure:

1. Employee counselling/awareness meeting: Although a disciplinary procedure is implemented to ensure employee conduct, competence, and capability meet business standards and practices, it shouldn’t be simply punitive. A disciplinary procedure should provide for the provision of informal warnings before any formal action is initiated. Informal warnings can be addressed in the manner of employee counselling or awareness meetings. In these meetings, you should highlight areas of concern regarding an employee’s performance, attendance, work standards, and overall conduct. Provide them with necessary support and an opportunity to show improvement before going down the formal route of sanctioning. At this stage, employees should be informed of the following consequences should they fail to improve.

2. Verbal warning: This is the first stage of the formal disciplinary process. It’s normally given for a first incident, provided no improvement has been shown since the employee counselling/awareness meeting took place.

3. Written warning: If the offence is of a more serious nature, or the employee has failed to improve following a verbal warning, a first written warning can be issued.

4. Final written warning: Should the employee’s conduct be deemed significantly serious, or the employee has failed to show improvement after a written warning was issued, a final written warning is deemed appropriate.

5. Termination of employment: Should the employee’s conduct be deemed significantly serious (e.g., substantiated gross misconduct), or the employee has failed to improve following a final written warning and after repeat opportunities and discussions, it may be deemed necessary and fair to terminate the employee’s contract of employment.

Let warnings expire if the employee addresses the issue

Warnings should be removed from an employee’s record after a specified period of time. The timeframes of each warning should be outlined in the disciplinary procedure and the employee advised accordingly. The employee should also be advised that failure to show improvement or further non-adherence to business policies may result in a further disciplinary sanction up to and including dismissal.

Set out appropriate sanctions

In some cases, it may be appropriate to consider demotion or transfer as an alternative to termination. It’s also important to note that there may be instances where more serious action, including dismissal, is warranted at an earlier stage e.g., in cases of substantiated gross misconduct.

Set out the appeal process

Finally, employees must be provided with the right to appeal against any disciplinary action. Details relating to the appeals process should be clearly outlined in your procedure and include information relating to the timeframes of the appeal, how to appeal, and the independent appeals officer.

Further points to consider

You should maintain strict adherence to the disciplinary process at each stage. You must apply the process in a fair and consistent manner when addressing areas of concern with each employee.

This means that you must ensure your procedures adhere to the principles of natural justice and fair procedures. The WRC Code of Practice sets out how to apply these principles in the workplace. You should ensure:

• Employee grievances are fairly examined and processed.
• Details of any allegations or complaints are put to the employee concerned.
• The employee concerned is given the opportunity to respond fully to any such allegations or complaints.
• The employee concerned is given the opportunity to avail of the right to be represented during the procedure. This may be an employee representative or Trade Union representative.
• The employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

Failing to apply or denying an employee their right to fair procedures can result in an unfair dismissal claim. Outlining and stringently following a robust disciplinary process ensures that employee rights are protected and that they’re provided with the opportunity and support to improve on their level of conduct, competence, and capability before the last resort of termination is considered.

It also enables you to clearly justify your grounds for any disciplinary sanctions that lead to an employee’s dismissal.

Need help managing a disciplinary procedure?

Using disciplinary procedures can be a stressful situation for both employers and staff.

If you’re in any doubt about how to carry out a disciplinary procedure, it’s important to seek professional advice.

An unfair dismissal claim is the last thing you want when trying to manage staff who are not maintaining the appropriate standards.

To avoid making a difficult situation worse, why not speak to one of our HR experts on 01 886 0350 or request a callback here.