Common Pitfalls in Handling Disciplinaries and How to Avoid Them

The Advisory, Conciliation and Arbitration Service (Acas) Code of Practice clearly sets out the correct disciplinary procedures that businesses should be following. Despite this, many employers make mistakes in their handling of disciplinary proceedings which can lead to serious consequences for both the employer and their employees. 

The law on unfair dismissal requires employers to act reasonably when dealing with disciplinaries. Although this may vary on a case-by-case basis, acting ‘reasonably’ generally means acting in line with the Acas Code of Practice. Even if a case does not qualify for unfair dismissal, handling disciplinaries poorly can be more time consuming and confusing and can cause damage to working relationships.

In this article we will look in depth at five common pitfalls you should avoid while handling disciplinaries and how you can uphold best practice to ensure a fair, transparent and compliant workplace where everyone is treated fairly, equally and within the law. 

What is a Disciplinary Procedure?

A disciplinary is a formal, structured process that businesses use to deal with employee misconduct or performance issues. This could include issues such as persistent lateness or unauthorised absences, poor performance at your job, misconduct (including harassment or discrimination), theft, fraud or a violation of company policy/procedure. 

Minor issues are usually best dealt with in an informal chat. However, if an informal approach fails to yield results, or the breach is serious in nature, employers can signal their dissatisfaction by taking formal action. 

Once an issue has been raised formally, an investigation must be conducted in line with the company’s disciplinary and grievance policy. This policy should be drafted in line with Acas guidelines. This usually involves notifying the employee of the disciplinary, collecting evidence and conducting a disciplinary hearing. Based on this, a decision will be reached about the outcome and the consequences will be communicated to the employee concerned. Consequences may range from no further action through to dismissal, and the employee has the ability to appeal the decision.  

Handling cases swiftly and effectively and being compliant makes for a more positive experience for everyone concerned. When disciplinaries are handled poorly, mistakes are made which can lead to reduced trust between staff and managers, a poor company culture and increased staff turnover. 

Employees who feel like they have been treated poorly or unfairly may also decide to seek legal advice and escalate their issues by taking legal action. This can have both financial and reputational consequences for a business. If an employment tribunal finds that an employer has failed to follow the guidance set out in the Acas Code, they can increase any financial award they have made by up to 25%. By handling disciplinaries properly and avoiding common pitfalls, employers will have increased protection if the case ends up in court. 

It is not good practice for employers to view a disciplinary as primarily a punishment exercise. Rather, disciplinaries at work should be seen as an opportunity to raise concerns, provide resolutions and, ideally, allow employees to reflect on their shortcomings and improve themselves.  

Common Pitfalls

Acas sets out a simple, six-step framework to guide you through a disciplinary procedure:

• Step 1: Understanding the options
• Step 2: Following a fair procedure
• Step 3: Carrying out an investigation
• Step 4: The hearing
• Step 5: Deciding the outcome
• Step 6: After the disciplinary

As you work through the above steps in your disciplinary procedure, it is essential that you take proactive measures to avoid some of the common pitfalls that employers tend to encounter which can lead to delays, disappointment, confusion and even legal action. 

To avoid making mistakes when dealing with disciplinaries, whether it relates to misconduct, performance or problems between staff, you will need to be able to recognise some of the common errors that employers tend to make. 

Some of the most common pitfalls that employers encounter when handling disciplinary proceedings include:

• Lack of clear policies and procedures
• Inadequate documentation
• Lack of due process
• Inconsistent application of discipline
• Failure to communicate effectively

A lack of clear policies and procedures can increase instances of grievances being raised and disciplinaries being required at work. Your disciplinary procedure should be clearly written, step by step, as well as communicated to all employees in a document, such as their:

• Employment contract
• Employee handbook

Good policies and procedures set out clear rules and expectations for everyone to follow and, ideally, they should always be:

• In writing
• Non-discriminatory
• Straight forward (free from jargon or vague language)
• Easily accessible
• Applied across the board (regardless of seniority, length of service etc)

Without appropriate policies and procedures, businesses will lack the rules and guidance that they require to properly respond when an issue is raised. Policy negligence can leave organisations open to financial losses, legal risks and reputational damage. 

Following clear policies and procedures helps to create an organised, safe, fair and compliant workplace where staff understand what is expected of them and how they should conduct themselves.

Inadequate documentation

When conducting disciplinaries, as with all aspects of the workplace, it is important to be highly organised and to have all of the relevant documentation to hand. 

Inadequate documentation can lead to confusion, miscommunication and mistakes being made. 

Important documentation includes:

• Writing out any allegations clearly
• Witness statements and evidence (including dates/times/specifics)
• Clear records of each stage in the timeline of the disciplinary being conducted
• Employee’s employment contract

Inadequate documentation can make it more difficult to ascertain the facts and to prove that the disciplinary procedure was followed correctly. It can also make the case more confusing, cause unnecessary delays and leave the employer open to legal action if they cannot back up their claims due to poor organisation and record keeping.

Lack of due process

Due process means following each step of the disciplinary procedure properly and not jumping to conclusions or rushing to make any decisions. A proper investigation takes time and requires a commitment to being fair and consistent. 

It is vital that employers provide employees with all the information they need and that they follow due process:

• Employees should be informed about the issues raised and given the opportunity to respond or provide a defence
• Employers should warn employees from the outset about the potential consequences (including dismissal)
• Investigations should be thorough and establish the full facts of the case
• Employees should be allowed to be accompanied to any meetings by a union representative or other companion
• Employees must be given the right to appeal any decisions made
• Ideally, the entire claim should not be handled by a single person (although this can be challenging in smaller businesses)

It is important to communicate in writing at each step of the process. This reduces the chances of miscommunication and also provides a written record of the disciplinary for everyone to refer to.

Inconsistent application of discipline

Employers and employees should act consistently. If some form of action is required as a result of a disciplinary (such as a formal warning), it is important that it is seen to be appropriate, proportionate, reasonable and actionable. 

Employees want to see consistency in how everyone is treated at work. An inconsistent application of discipline builds a culture of unfairness where workers may perceive:

• Favouritism
• Discrimination
• Unfair treatment

Inconsistent application of discipline means that one person is punished differently (or not at all) from another for the same issue. Essentially it means one rule for one worker, a different rule for another. This can create discontent within the workforce and may leave workers feeling vulnerable and stressed as they see inconsistency from management and do not know where they stand. 

Inconsistency can also cause confusion about what is and isn’t acceptable at work which can lead to unintentional breaches and problems between co-workers.

Failure to communicate effectively

Communication is key in solving grievances and sorting out issues in the workplace.

It is important to clearly communicate with everyone involved at each stage of handling disciplinaries, including:

• Giving employees all of the information that they need to provide a robust defence or explanation for their actions
• Providing a realistic timeline of the process
• Communicating immediately about any delays. Unexplained delays will be viewed negatively if the case reaches a tribunal

Miscommunication during disciplinaries leads to confusion, contradictions and negative feelings between workers and employers. It can also drag out the process unnecessarily which can lead to stress for the employee who may feel like they are in limbo waiting for an outcome.

Strategies for Avoidance 

Having an in-depth understanding of the core principles of the Acas Code of Practice will help employers ensure compliance and avoid common pitfalls. However, reducing the need for a disciplinary in the first place is the best line of defence for employers. This involves using good employment relations practices throughout the recruitment process, for example:

• Clear, accurate job descriptions that set clear expectations
• Comprehensive recruitment practices (including pre-employment screening, interviews and seeking multiple references)
• Carefully selecting the right candidate for the job
• A clear, compliant employment contract
• Good company induction and training
• Transparent and honest practices

Poor conduct, performance and other issues that may cause a disciplinary to be necessary will be less likely in a business that has a positive working environment and fosters good relationships between workers. 

Employees will be significantly more likely to meet their employer’s expectations if they are:

• Shown clear leadership
• Engaged
• Feeling respected and valued
• Empowered to make decisions and take responsibility
• Working in an environment that promotes inclusivity, equality and fairness
• Set clear expectations around accountability and responsibility

Sometimes, even with the best employment practices, an employer may have to enact their disciplinary procedure. If this happens, they will want to avoid common pitfalls and reach a solution as quickly as possible to resume business as usual.

Practical strategies for avoiding common pitfalls in handling disciplinaries include:

• Regularly monitoring and reviewing company procedures and policies to ensure they are up to date with any legislative changes and remain fit for purpose
• Ensuring that your company disciplinary procedures are clear, consistent and compliant
• Keeping up with any relevant legal or legislative changes that may affect you
• Promoting a culture of fairness, transparency and equality within the workplace
• Encouraging everyone to be accountable and take responsibility for their actions in the workplace
• Managers and those in senior positions should lead by example, behave fairly and apply the rules consistently

Employers and managers who may be involved in disciplinary procedures must be trained for the task. This allows them to act within the Acas Code and avoid some of the common pitfalls that may arise. 

Training and development for employers, managers and HR managers should provide fundamental guidance on:

• Effective disciplinary practices and procedural fairness
• Good communication skills
• Essential line management skills
• How to communicate effectively
• Being responsible and accountable rather than immediately defensive

If you are facing an issue that is particularly complex or serious, it is a good idea to consult an expert to get advice on how to proceed. This can help you to remain compliant with employment laws and regulations. This may involve consulting:

• HR professionals
• Legal experts
• Acas

Conclusion 

Handling disciplinaries in an effective, well-organised way and acting in line with the Acas Code allows for suitable decisions to be made and resolutions to be reached. This allows employers and employees to move on when an issue or breach occurs and creates a fairer and more positive working environment where employees feel valued, safe and listened to. 

By implementing the strategies discussed in this article and taking expert advice when needed, you place yourself in a position to avoid some of the common pitfalls that you may encounter when handling a disciplinary. It is important that employers take proactive measures to avoid common pitfalls and problems and that any policies and procedures are regularly reviewed to ensure they remain compliant, fair and fit for purpose. 

If you would like to strengthen your HR skills and learn more about disciplinaries and grievances, you may be interested in our CPD accredited training course.