FAQ: Discipline

If my company does not recognise a trade union, can my employees still bring a trade union representative to accompany them at a disciplinary?

Yes, since September 2000 it has been the right of the employee to be accompanied at a hearing or appeal by a fellow employee or union representative.

I want to issue someone with a disciplinary warning - what do I do?

Talk them through the disciplinary procedure, from written advice of meeting, the right to be accompanied, process of meeting, adjournment if necessary, and decision of what level of warning to issue and follow up letter with right to appeal.

How long is it before an employee can claim unfair dismissal?

An employee has to be continuously employed for 12 months. If discrimination is involved there is no service requirement.

I have just caught an employee red-handed stealing from the stock room. Can I sack him immediately?

If you catch an employee red handed, under the statutory dismissal procedure (modified regulations) you are entitled to dismiss the employee on the spot. You must write to the employee to tell him why he has been dismissed and also give him the right of appeal. However, we advocate that the full statutory dismissal process should be used.

I am a medium sized company and do not recognise a Union. Do I have to allow my staff to be accompanied at a disciplinary hearing by a Union Representative?

Yes, even though you do not recognise a Union the Employment Relations Act 1999 allows the employee this right. This right is in addition to any contractual right and encompasses casual, temporary and part-time workers, indeed anyone who falls within the general definition of a worker.

Can I sack someone for poor performance?

It is not expected that an employer has to retain an employee who does not perform. However, in order to deal with this matter the employer must first identify the problem, and then bring this to the attention of the employee.

This may initially be at an informal meeting, where targets or levels of achievement should then be set with a realistic time scale for their delivery. Necessary training can be taken into account at this stage also. 

If the employee fails to reach the realistic performance level then disciplinary action can follow. This may not immediately lead to dismissal, but if the required performance standard is not forthcoming, further disciplinary action leading to dismissal may follow. Employer’s should be careful to provide appropriate support to enable the employee to achieve the necessary standard.

Often at internal disciplinary hearings the employee does not provide their own written case but presents it verbally. However, this means that the manager cannot prepare fully for the hearing? Can an employer insist on the employee providing a written case or script in advance?

The answer is very clearly ‘no’. You can say to an employee, when you are writing to them setting out the charges that it might be helpful to have an outline in advance – but you cannot insist on it.

The correct thing to do, if something is raised that the line manager has not had the chance to think about, is to adjourn the meeting to investigate/consider and then resume the meeting at a later date.

If new evidence is provided or if the manager discovers something new before the meeting resumes, the manager has to tell the employee what the results of the further investigation were. Legally it does not have to be done in writing but from an evidential perspective in case the employee challenges what was said, it is more sensible to do so in writing.

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