March 29, 2023
As an employer or HR manager, responding to unacceptable behaviour in a professional manner is one of the biggest challenges you will face. In most cases, the issues can be resolved through either disciplinary action or performance reviews. However, knowing when to use each option isn’t always easy.
If you’re wondering “what is the process for disciplinary actions or performance reviews?”, this quick guide will provide the answers you need.
Whether you need to learn more about the process for disciplinary actions in response to a current crisis or just want to be prepared for future reference, Premier Legal is here to help.
Disciplinary action is defined as “a method for dealing with a worker who causes problems or does not obey company rules”. It can lead to a variety of outcomes ranging from written warnings to temporary suspension or permanent dismissal.
Taking disciplinary action against an employee isn’t something that employers or HR managers should take lightly. However, there are several situations in which disciplinary action may be required. They are commonly split into two categories;
- Capability – when the employee is not performing as expected.
- Misconduct – covering insubordination, bullying, harassment, or employee absence.
If it is deemed necessary to resolve a situation, however, businesses must understand that the process for disciplinary actions and performance reviews in the UK is governed by employment law and regulations, including the Employment Rights Act 1996 and the Equality Act 2010.
Should Performance Reviews Be Used to Start the Process for Disciplinary Actions?
When planning to take disciplinary action against employees, the case needs to be handled in a discrete and private manner. If the violation relates to their capability to complete the job, an upcoming performance review may seem like the perfect opportunity.
After all, performance reviews are defined as a formal assessment of an employee’s performance for the company and “may be in the form of a quantitative rating or a more subjective appraisal and usually involves feedback to the employee”.
In the UK, they are usually conducted annually or bi-annually. Employers are required to ensure that performance reviews are conducted fairly and without discrimination, taking into account factors such as the employee’s age, gender, disability, and other protected characteristics under the Equality Act 2010.
Generally speaking, though, performance reviews are an opportunity for employers to review an employee’s performance against previously agreed objectives or targets. As such, they are not ordinarily used as a basis for disciplinary action unless there are serious concerns about the employee’s performance or conduct.
Instead, they are designed to allow for constructive feedback and development. When an employee’s capability or conduct is in question, this is an ideal opportunity to put an action plan in place. This could include providing staff training or other forms of support. It is important not to gloss over issues in a performance review/appraisal. If you find that you later need to take disciplinary action for an issue relating to capability or conduct it is not helpful if the employee has previously been given glowing reviews which have failed to mention any issues.
Premier Legal’s HR support services can provide the advice you need ahead of a potentially difficult performance review.
While performance reviews are a good way to inform an employee that they are not performing as expected, their purpose is to support the employer-worker relationship rather than impose punishments. When you need to stamp out unacceptable behaviour, disciplinaries are the far more suitable solution.
However, you must follow the right process for disciplinary actions. Otherwise, you could run the risk of facing unfair dismissal claims or causing serious damage to the company culture.
Employers in the UK are required by law to follow a fair and transparent process for disciplinary actions. The disciplinary process should aim to remove bias from the process and enable you to conduct a thorough investigation while simultaneously giving the employee a chance to give their side of the story.
The ACAS (Advisory, Conciliation and Arbitration Service) Code of Practice on Disciplinary and Grievance Procedures provides guidance for employers on the fair and consistent handling of disciplinary issues in the workplace, and failure to follow this Code can result in increased compensation for the employee if they pursue a claim at an employment tribunal.
By completing the following steps, you can be sure to achieve the best outcomes for your business;
- Investigate whether an informal solution could be used. From the aforementioned development plans for capability issues to having a private word following minor misconduct, these steps can deliver a fast solution that also shows you have trust in the employee to improve without the need for formal action.
- If a disciplinary hearing will be required, you must inform the employee of your intentions. This should provide details of the alleged misconduct or poor performance and potential consequences. You must do this in writing and give the employee enough time to prepare their case.
- You should also point your employee to the staff handbook, which will hopefully cover what they can expect from the upcoming disciplinary procedures. They can also use it to check the company’s expectations relating to whatever violation they have been accused of.
- A thorough investigation should take place to get all the facts regarding the unacceptable behaviour. This should be completed by an unbiased third party and may require interviews with relevant parties (such as the victim in a bullying case) or gathering other forms of evidence.
- Hold the disciplinary meeting. This should follow up on what has been detailed in the letter and introduce the evidence that has been collected. It must also explain the severity of the issue and potential repercussions while giving the employee a chance to present their evidence and contest any claims that they believe to be false. The employee must be given the right to be accompanied to a disciplinary by a work colleague or trade union representative.
After this, you will need to make a disciplinary decision. This could range from no action to a written warning or even dismissal. The employee must be afforded the chance to appeal this decision. Finally, you will need to follow up the disciplinary hearing with a termination meeting (if dismissal is the outcome) or equivalent action.
Get Help with Your Disciplinary Action Processes Today
Whatever the situation might be, it is imperative that you complete all procedures with the best interests of your business in mind. Premier Legal’s employment law experts are happy to answer any questions you may have regarding disciplinary or performance reviews. Get in touch today to find out more.