Legal

Welcome to Legal Eagle page. At this time we thought it might be useful to look at the basics of the Statutory Minimum Procedure (SMP) which became law in October 2004 as a result of the implementation of the Employment Act 2002.

Please feel free to telephone me if you have any questions arising.

Annette.

ACAS CODE OF PRACTICE 

FORMAL DISCIPLINARY PROCEDURE

 POST OCTOBER 2004

STATUTORY MINIMUM PROCEDURE (SMP)

 The SMP must be used if dismissal is contemplated. If an Employer dismisses without following this procedure, it is automatically an unfair dismissal. If dismissal is not contemplated the Employer can adopt a less stringent approach but it still has to be reasonable.

 I always advise my clients to adopt this procedure, whether dismissal is contemplated or not. It is far more complicated to have two or more procedures designed to accommodate the outcome. There is more risk of making mistakes, which could lead to an unfair dismissal

 FORMAL ACTION 

• ALLEGATION MUST BE IN WRITING

 Employer must set out a written statement of grounds for action in sufficient detail to enable the Employee to understand what he/she is alleged to have done wrong and why it is not acceptable and provide details of a meeting to discuss the matter. 

• THE EMPLOYEE MUST BE GIVEN COPIES OF ANY DOCUMENTS THAT WILL BE PRODUCED AT THE MEETING

Witness Statements 

Reports 

Appraisals 

Letters 

E-Mails 

Stock Sheets 

Telephone Records 

Computer Data 

And any other relevant document that is to be relied on by the Employer 

• TIMING & LOCATION SHOULD BE AGREED WITH THE EMPLOYEE

 An employee must do his/her best to attend the meeting but can ask for a postponement if there is a good reason, e.g. Representative unavailable or illness ( If in doubt, an Employer can ask the Employee to obtain a letter from his/her Doctor certifying unable to attend a disciplinary meeting due to illness.) 

• EMPLOYEE MUST BE GIVEN SUFFICIENT TIME TO PREPARE

Depending on the nature of the matter, at least 5 working days. If complicated there may be justification for seeking a postponement if witnesses have to be traced or data to be checked by an expert (e.g. Computer Data). 

• EMPLOYEE ALLOWED REPRESENTATION

A representative is now known as a Companion. It is important to take notes. A Companion is entitled to hep the Employee to prepare their response and in the meeting can ask questions or put over points. A Companion cannot answer questions put to the Employee. The Employer should be notified of the identity of the Companion.  

The Employee must be reasonable in selecting a Companion. E.g. cannot insist on a Companion who is from the other side of the country when there are suitable candidates for being a Companion on site. A Person is entitled to decline being a Companion. 

• EMPLOYEE MUST NOTIFY ASAP IF UNABLE TO ATTEND

I would advise that any request to postpone is put in writing setting out the reason, e.g. Employee requires more time to prepare his/her response. Perhaps a witness is not immediately available.   

• EMPLOYER MUST RESCHEDULE MEETING IF FAILURE TO ATTEND IS UNAVOIDABLE OR FOR A GOOD REASON

Failure to do this could render a dismissal unfair, which is why it is important to keep a copy of the written request for postponement.  

• MEETING CAN GO AHEAD WITHOUT THE EMPLOYEE IF THEY FAIL TO ATTEND WITHOUT NOTICE AND WITHOUT GOOD CAUSE. I would advise caution before going ahead and hearing a disciplinary matter without the employee being present. Be sure that the Employee has received notificIt may be prudent to give an employee a second chance of attending

• EMPLOYEE CAN SUGGEST AN ALTERNATIVE DATE TO THAT PROPOSED BY EMPLOYER BUT MUST BE WITHIN 5 WORKING DAYS OF ORIGINAL DATE.

I would suggest that you wait to see what the Employer says. They might be happy to postpone for longer, which might suit the Employee’s purpose.  

            THE MEETING SHOULD FOLLOW THE BASIC PATTERN:

• EMPLOYER EXPLAINS COMPLAINT AND PRESENTS EVIDENCE

• EMPLOYEE/REPRESENTATIVE ALLOWED TO ASK QUESTIONS AND RAISE ISSUES ON THE EVIDENCE

• EMPLOYEE PRESENTS EVIDENCE IN REPLY TO ALLEGATIONS INCLUDING CALLING WITNESSES AND PRODUCING DOCUMENTS 

• EMPLOYER ENTITLED TO ASK QUESTIONS AND RAISE ISSUES ON THE EVIDENCE

 Suggest a short adjournment at this point to consider all the evidence and whether any further points need to be addressed. 

• BOTH EMPLOYER AND EMPLOYEE SHOULD BE ABLE TO HAVE THEIR SAY BEFORE A DECISION IS MADE.

Use the adjournment to put together the points that you wish to make in closing. You need only jot down one word to remind you of what you want to say. For example, “Previous Discipline?” Work Record”, “Other Mitigation”, “Previous Sanctions in similar cases”, “Appropriate alternative to Dismissal”. On reconvening ask the Employee if he/she has any further points to make before the meeting closes. 

            BEFORE DECIDING ON DISCIPLINARY ACTION AN EMPLOYER  SHOULD: 

• DECIDE WHETHER DISCIPLINARY ACTION IS JUSTIFIED OR NOT

• IF JUSTIFIED CONSIDER WHAT FORM IT SHOULD TAKE

 i.e. First Written, Final Written, (Contractual Suspension, Contractual Demotion, Loss of Seniority/Pay, Period of Close Supervision & Reviews, Suspended Action, subject to Contract/Disciplinary Procedures).

• TAKE INTO ACCOUNT EMPLOYEES PREVIOUS DISCIPLINARY RECORD

• TAKE INTO ACCOUNT EMPLOYEES WORK RECORD AND LENGTH OF SERVICE

• TAKE INTO ACCOUNT SANCTIONS IMPOSED IN SIMILAR CASES

• WHETHER INTENDED DISCIPLINARY ACTION IS REASONABLE IN THE CIRCUMSTANCES i.e. mitigation.

• NOTIFY THE EMPLOYEE IN WRITING OF DISCIPLINARY ACTION AND PROVIDE DETAILS OF HOW THEY CAN EXERCISE THE RIGHT TO APPEAL

 If Discipline is due to Poor Performance – Employer should identify problem, improvement required, timescale to improve, review dates, and support/training to be provided to aid improvement.  

If Discipline is due to Misconduct – Employer should identify problem and improvement required. 

• AN APPEAL MUST BE BY WAY OF A REHEARING OF THE MATTER AND ANY ADDITIONAL EVIDENCE SHOULD BE PROVIDED.
• WHERE REASONABLY PRACTICABLE THE APPEAL SHOULD BE DEALT WITH BY A MORE SENIOR MANAGER THAN ATTENDED THE FIRST MEETING.

• AN EMPLOYEE IS ENTITLED TO BE ACCOMPANIED AT APPEAL.

DISCIPLINARY ACTION TAKEN

 First Written Warning (6 months on file)

 Final Written Warning (12 months on file)

 Alternative Action e.g. Suspension/Demotion.

EMPLOYER MUST STATE THAT FAILURE TO IMPROVE OR MODIFY BEHAVIOUR WILL RESULT IN FURTHER DISCIPLINARY ACTION BEING TAKEN WHICH COULD LEAD TO THE TERMINATION OF THE EMPLOYEE’S CONTRACT OF EMPLOYMENT.

 PROVIDE DETAILS OF THE APPEALS PROCEDURE WHICH MUST BE BY WAY OF A REHEARING OF THE CASE.

THE SMP MUST BE USED 

• IF DISMISSAL IS CONTEMPLATED

 When would a dismissal be contemplated?

(a)   The Employee already has a final written warning.

 (b)   The offence amounts to gross misconduct.  

• IF DISCIPLINE OTHER THAN WARNINGS (subject to contract)

      (a)   Demotion. 

(b)   Loss of status. 

(c)    Probationary period.  

 A TRIBUNAL WILL CONSIDER THE ISSUE OF “REASONABLE BEHAVIOUR” 

         When dealing with any disciplinary matter always consider what is reasonable in the circumstances. 

• TO HELP & ENCOURAGE EMPLOYEES TO IMPROVE RATHER THAN PUNISH

It is more cost effective to retain an employee rather than dismiss and have to spend time and money seeking a replacement – there are no guarantees. Iit is worth reminding an Employer that this is one of the principles of reasonable behaviour.  

• INFORM THE EMPLOYEE OF THE CASE AGAINST THEM

You will see that under the formal procedure this involves a statement of case with evidence in support.

• PROVIDE AN EMPLOYEE WITH AN OPPORTUNITY TO STATE THEIR CASE

Under the formal SMP this allows an employee to bring their own evidence including witnesses. Watch out when imposing a prohibition on Employees contacting other members of staff during a suspension. This could effectively prevent an employee from adequately preparing their response. 

• ALLOW  AN EMPLOYEE TO BE ACCOMPANIED

This is one of the most important rights of an employee and involves far more than merely a “hand holding exercise”. A “companion” is entitled to assist the association member to prepare the response, and can take paid time off to prepare for and go the meeting. A Companion is entitled to raise questions on behalf of the member and make representation, but as I have previously stated, not answer questions for the member, which stands to reason. An important function of a Companion is to take notes. I always suggest a Secretary as a good person to attend a disciplinary meeting in order to take minutes, which can be agreed later.   

• ESTABLISH FACTS BEFORE TAKING ANY ACTION

• ENSURE ANY ACTION IS REASONABLE IN THE CIRCUMSTANCES
• NEVER DISMISS ON FIRST OFFENCE UNLESS GROSS MISCONDUCT
• PROVIDE WRITTEN EXPLANATION FOR DISCIPLINARY ACTION

• PROVIDE CLEAR EXPLANATION ON REQUIRED IMPROVEMENTS
• OPPORTUNITY TO APPEAL

• DEAL WITH ISSUES THOROUGHLY AND PROMPTLY

• ACT CONSISTENTLY.

Many of the requirements of reasonable behaviour are incorporated in the SMP, which is why I advise my clients to follow that procedure regardless of the contemplated sanction.

  INFORMAL ACTION 

• DOES NOT FORM PART OF THE STATUTORY MINIMUM DISCIPLINARY PROCEDURE (SMP)

 It is the old informal meeting and would be appropriate in cases where it is a first offence which is minor. However, verbal warnings are no longer appropriate. Although an informal warning can be given it cannot be used as a first stage in discipline. If you feel that invoking the formal disciplinary procedures is harsh this is an alternative.  

• CAN HAVE AS MANY INFORMAL MEETINGS/ACTION AS APPROPRIATE

It depends upon the circumstances of the case, on a case by case basis.  

• EMPLOYEE DOES NOT HAVE TO BE ACCOMPANIED TO AN INFORMAL MEETING

It is not part of the Formal Disciplinary Process 

It cannot be used as a means of starting formal disciplinary procedures 

I advise my clients to consider allowing the employee to be accompanied anyway to avoid any misunderstandings.

FINALLY

There is a modified procedure which can be used after a dismissal has taken place. However I think that this could well cause problems and carries much more risk than an application to the Tribunal. For this reason I have not included the procedure in this briefing. In the unlikely event that you need advice on the modified procedure please telephone me.