Disciplinary and Capability Procedure - A Guide for UK Employers and Employees

Published:

Oct 26, 2022

A disciplinary and capability procedure explains the company's expectations for performance and conduct and what will happen if an employee falls short of those standards. 

As a result, this disciplinary and capability procedure reflects the critical requirements of the Acas Code of Practice on Disciplinary and Grievance Procedures in the UK.

So, let's explore what this procedure is in detail: its essential elements, legal framework, and best practices to ensure fairness, compliance, and productivity in your workplace.

Top Features Of This Procedure

☑ This procedure provides a straightforward, step-by-step process that helps ensure fairness and consistency throughout the workforce. This structure is crucial for employees to understand the severity of an issue and determine the appropriate response from a manager or employer.

☑ It ensures that all actions taken are transparent and well-documented, giving both the employer and the employee a clear understanding of the situation, the expectations, and the outcomes.

☑ Provides a commitment to fairness, ensuring that any actions taken are justifiable, non-discriminatory, and consistent across the organisation.

☑ This procedure is designed to comply with employment laws and guidelines, such as the Employment Rights Act 1996 and the Acas Code of Practice, helping protect both you, the employer and your employees from potential legal issues.

☑ Especially within capability procedures, there is a focus on identifying areas for employee improvement and providing support - such as training or adjustments to the role, before moving to more severe consequences.


Table of Contents

  • What is a Disciplinary and Capability Procedure?

  • Why is a Disciplinary and Capability Procedure Important?

  • What are the Common Pitfalls of a Disciplinary and Capability Procedure?

  • What Legal Framework and Guidelines Goven This Procedure?

  • What are the Core Components of a Disciplinary and Capability Procedure Template?

  • Best Practices for Employers Around Their Disciplinary and Capability Procedure

  • When Should An Employer Initiate a Disciplinary Procedure?

  • How Should a Capability Issue be Addressed?

  • What Rights Do Employees Have During a Disciplinary Process?

  • Can an Employee be Dismissed for a First Offence?

  • What Constitutes a Gross Misconduct?

  • What is An Appeal Process in Disciplinary and Capability Procedures?

  • Can An Employer Suspend An Employee During An Investigation?

  • What is the Importance of Documenting the Disciplinary and Capability Process?

  • How Can Discrimination Be Avoided During These Procedures?

  • What Role Does the ACAS Code of Practice Play in Disciplinary and Capability Procedures?

  • Disciplinary and Capability Procedure Final Thoughts


What is a Disciplinary and Capability Procedure?

A disciplinary and capability procedure explains what standards of performance and conduct are expected by the company and what will happen if an employee’s performance - or conduct - falls short of those standards. For example, these can include if an employee is not performing or if allegations of misconduct are raised against an employee and how to handle them.

Acas PIP plan

The procedure with respect to underperformance (as opposed to misconduct) is also often known as a PIP or “performance improvement plan”. 

As a result, a Disciplinary and Capability Procedure can then be split into 2 main areas:

Disciplinary Procedures

These are processes followed when an employee's behaviour or conduct is in question. 

Capability Procedures

These focus on an employee's ability to perform their job due to skills, health, or other performance-related factors.

Both procedures, as part of this, are designed to be as fair, transparent, and consistent as possible, adhering to the Acas Code of Practice and UK employment laws.

What Areas Tend to Be Covered

This is not an exhaustive list, but the following areas can tend to be covered under this procedure:

  1. Work Performance

  2. Attendance Issues

  3. Misconduct

  4. Gross Misconduct

  5. Breach of Company Policies

  6. Substance Abuse

  7. Theft or Fraud

  8. Bullying and Harassment

  9. Negligence

  10. Misuse of Company Property

  11. Conflict of Interest

  12. Insubordination

  13. Violation of Health and Safety Rules

  14. Data Breach

  15. Discrimination

  16. Policy violations

Consequently, such a procedure must comply with specific minimum standards, which are set out in the ACAS Code of Practice on Disciplinary and Grievance Procedures. 


Why is a Disciplinary and Capability Procedure Important?

The Acas Code of Practice on Disciplinary and Grievance Procedures contains recommendations for the handling of disciplinary situations at work. 

Non-statutory Acas Guide

It is accompanied by a non-statutory Acas guide, which provides you with guidance on best practices.

Financial Ramifications of Not Having One In Place 

Where an employer unreasonably fails to follow the Acas Code of Practice on Disciplinary and Grievance Procedures, any compensation awarded to an employee in an Employment Tribunal may be increased by up to 25%, therefore having (and following) a legally compliant disciplinary and capability procedure will reduce or eliminate this risk.

Informs Staff of Their Representation

In addition, employees and workers have the right to be accompanied at disciplinary hearings by a fellow worker or a trade union representative. Staff should be informed of this right, and this procedure will help achieve this.

Needs to be Included in the Employment Contract

Employers also have a duty under Section 1 (S1) of the Employment Rights Act 1996 to give the employee a written statement at the start of their employment, setting out the key terms of their employment. 

Usually, the employer does this by providing an employment contract. The contract must include specific details about the company’s disciplinary procedure, including who appeals should be sent to. Consequently, this procedure helps with ticking off this box.

Sets Consistent Guidance for Managers and Employees

Finally, employees need to know what to expect, and managers need to understand what they must do in situations of poor performance or misconduct. 

As a result, having a robust and detailed procedure in place means that your managers can follow it, knowing that they are complying with basic legal requirements while they do so

What are the Common Pitfalls of a Disciplinary and Capability Procedure?

There are several common pitfalls to this type of procedure, such as:

Not Complying With Section 1 of the Employment Rights Act 1996

With a disciplinary and capability procedure in place, your company may be complying with Section 1 of the Employment Rights Act 1996, as highlighted above - which could lead to financial penalties in the event of an Employment Tribunal.

Not Following The Legal Requirements of the Acas Code

You may also then not be following the legal requirements of the Acas Code when taking disciplinary action - up to and including dismissal - leading to potential compensation being awarded to the employee in the event of an Employment Tribunal.

Having a Contractual Disciplinary and Capability Procedure

Your employment contract contains the terms and conditions that govern an employee’s employment. 

Generally, changes can only be made with the consent of both parties. As a result, as an employer, you will want to update your policies and procedures regularly. However, in certain situations - particularly where there is a disciplinary or performance issue - you should avoid following them to the letter. 

For these reasons, the disciplinary and capability procedure should be non-contractual so that it does not form part of the employment contract and changes can be made quickly.

Otherwise, it will need to obtain staff agreement to any changes, however small.

Therefore, the disciplinary and capability procedure should clearly state that it is not contractual, i.e., that it does not form part of the employment contract.

Including Too Much Legalese and Detail

The best disciplinary and capability procedures are clear, concise and easy to navigate and understand. 

As a result, procedures that are long, unwieldy, and full of jargon are unlikely to be used or understood.

Not Giving Employees a Copy of the Disciplinary and Capability Procedure

The disciplinary and capability procedure should ideally be given to the employee on the first day of employment. It should be stored in a readily accessible location - e.g. the company intranet or a contract and document storage platform that your employees can access.

Employees should also be informed when the disciplinary and capability procedure has been updated.

What Legal Framework and Guidelines Goven This Procedure?

In the UK, 2 main legal frameworks provide guidance and govern this procedure. This is:

The Employment Rights Act 1996

This piece of legislation sets out the rights of your employees and you as an employer, including the right to a fair hearing and unfair dismissal.

Acas Code of Practice on Disciplinary and Grievance Procedures 

The Acas Code of Practice offers you guidance to ensure fairness and legality in handling disciplinary and grievance issues.

Consequently, understanding these frameworks is crucial for both you as an employer and your employees to follow the procedures correctly and lawfully.

What are the Core Components of a Disciplinary and Capability Procedure Template?

The critical steps in a disciplinary procedure template can be split into several core components such as:

Investigation

This first stage of the procedure should involve a thorough and impartial investigation when a breach is thought to have occurred - this must precede any disciplinary action to establish facts first and foremost.

Hearing

The employee should then be given the opportunity to respond to the allegations in a formal meeting.

Where they can get their side across with appropriate representation.

Decision and Sanctions

A fair decision should then be made based on evidence. Suppose a breach is found to have occurred. In that case, sanctions may range from a verbal warning to dismissal, depending on the severity of the misconduct.

This should be made clear to ensure that communication and understanding are maintained.

Appeal

Employees then have the right to appeal against any disciplinary decision, which should be reviewed impartially.

Consequently, these stages should be made clear to your employees as part of your procedure.


Best Practices for Employers Around Their Disciplinary and Capability Procedure

Several best practices for you to follow as an employer around this procedure consist of:

  • Clearly communicate policies and expectations to employees.

  • Keep detailed records of all steps taken in disciplinary and capability procedures.

  • Ensure your managers and HR professionals are trained in handling these procedures.

  • Seek to resolve issues informally, where possible, before moving to formal procedures.


When Should An Employer Initiate a Disciplinary Procedure?

An employer should initiate a disciplinary procedure when they have reasonable belief or evidence that an employee has breached the company's rules or standards of behaviour. 

It should start with a fair and thorough investigation to determine the facts as above, then continue through the rest of your policy and procedure you have in place.

How Should a Capability Issue be Addressed?

Addressing a capability issue starts with identifying the problem and discussing it with the employee. During this period, you should set clear performance expectations, offer support and training, and give the employee reasonable time to improve. 

Regular reviews should also be conducted, and if improvement is not seen, formal steps may follow.

What Rights Do Employees Have During a Disciplinary Process?

Employees have the right to be accompanied by a colleague or a Trade Union representative, to be informed of the allegations against them, to respond to these allegations, and to appeal against any disciplinary action taken.

Can an Employee be Dismissed for a First Offence?

Yes, an employee can be dismissed for a first offence if it is considered to be gross misconduct. Examples include theft, violence, severe health and safety breaches, or significant damage to the company.

What Constitutes a Gross Misconduct?

Gross misconduct refers to actions that destroy the employer-employee relationship, including theft, fraud, physical violence, serious negligence, or severe breach of health and safety regulations.

What is An Appeal Process in Disciplinary and Capability Procedures?

An appeal process allows an employee to challenge a disciplinary or capability decision. 

It should be conducted impartially by a manager not previously involved in the case, allowing the employee to present new evidence or argue against the decision accordingly.

Can An Employer Suspend An Employee During An Investigation?

Yes, an employer can suspend an employee on full pay during an investigation into alleged misconduct as a neutral act - not a disciplinary action - to ensure a fair investigation is carried out.

What is the Importance of Documenting the Disciplinary and Capability Process?

Documentation is crucial for ensuring the process is fair, transparent, and consistent. 

This step then provides all concerned with a record of the actions taken, decisions made, and justifications for those decisions - which can be vital in the event of any legal challenges.


How Can Discrimination Be Avoided During These Procedures?

Employers must apply procedures fairly and consistently to all employees, regardless of age, gender, race, disability, or any other protected characteristic.

As a result, decisions should be based on facts and evidence, not assumptions or stereotypes.

What Role Does the ACAS Code of Practice Play in Disciplinary and Capability Procedures?

The ACAS Code of Practice provides you with guidelines for handling disciplinary and grievance procedures. 

You should be aware that following the code is not legally mandatory. Still, tribunals will consider whether an employer has followed it when dealing with relevant cases.

Disciplinary and Capability Procedure Final Thoughts

Disciplinary and capability procedures are essential for maintaining standards and resolving issues within your workplace.

By adhering to legal requirements and best practices, you, as an employer, can help create a positive and productive work environment while ensuring your employees are treated fairly and with respect. 

Remember, the goal of this procedure is not just to address current issues but also to prevent future ones from occurring and simultaneously enhance your overall workplace.


Disclaimer:
Please note: Pocketlaw is not a substitute for an attorney or law firm. So, should you have any legal questions on the content of this page, please get in touch with a qualified legal professional.

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