Author: Lynda A. C. Macdonald
US Consultant: Julie DiMauro
- Disciplinary rules set standards and make it clear what conduct is and is not acceptable in the workplace, while having a disciplinary procedure permits an employer to deal fairly and consistently with employees who breach the rules. See Disciplinary Rules and Procedures.
- It is in employers' best interests to develop clear and comprehensive disciplinary rules and procedures, to avoid misunderstandings and ensure that employees understand what is expected of them in their employment. See Disciplinary Rules and Procedures.
- Misconduct should be dealt with promptly, as any delay can mean that a minor issue has the potential to escalate into a larger problem. See Dealing with Problems Promptly.
- A disciplinary procedure is usually structured in a series of stages, although it is not always necessary to enter the procedure at the first stage. See The Stages of a Disciplinary Procedure.
- Many disciplinary matters can be dealt with effectively without instigating the formal procedure. See Dealing with Problems Informally.
- Where an employer becomes aware of possible misconduct it should instigate a full investigation into the surrounding circumstances, and suspension of the employee for a short period to allow this may be appropriate. See Conducting an Investigation and Suspension from Work During an Investigation.
- After the investigation into the circumstances surrounding the alleged misconduct, a disciplinary interview should be set up. See Setting up a Formal Disciplinary Interview, Permitting a Companion at a Disciplinary Interview and Conducting Disciplinary Interviews.
- The decision to impose a disciplinary penalty should be taken only after a full investigation and a properly convened disciplinary interview, and the decision should be communicated to the employee as soon as possible after the conclusion of the interview. See Deciding the Penalty, Consistency in Imposing Disciplinary Penalties and Communicating the Outcome of the Proceedings to the Employee.
- Where the outcome of the disciplinary proceedings is a warning, the wording of the warning should be clear and unambiguous. See Warnings.
- Dismissal should be regarded as a last resort and, except in cases of gross misconduct, should be implemented only when an employee has committed a further act of misconduct while subject to a final written warning. See Dismissal and Gross Misconduct.
- Where it is unable to obtain concrete proof of misconduct, an employer can still take disciplinary action provided that certain principles are observed. See Misconduct That is Suspected but not Proven.
- It is important that employees are granted the right of appeal against any disciplinary decision. See The Right of Appeal.
- The employee concludes that his or her conduct is acceptable;
- The conduct in question develops into a habit;
- A precedent is set;
- Other employees begin to display the same type of behavior; and
- The relevant manager's credibility and authority are damaged.
- Use of resources;
- Health and safety;
- Use of computer systems, including use of email and the internet;
- Drinking alcohol; and
- Claiming expenses.
- Stage 1 - recorded verbal warning;
- Stage 2 - first written warning;
- Stage 3 - final written warning; and
- Stage 4 - dismissal with notice.
- An investigation into the facts has been carried out (see Conducting an Investigation); and
- The employee has been given a full opportunity to explain his or her side of events at a properly convened disciplinary interview. See Conducting Disciplinary Interviews.
- Make the employee aware of how and why his or her conduct is causing a problem, or the precise way in which the employee's behavior has fallen short of what is required;
- Establish the reason for the particular conduct or behavior; and
- Seek agreement on how to ensure that the misconduct or inappropriate behavior does not continue or recur.
- The date, time and place of the meeting;
- The key points discussed;
- Any action points agreed; and
- The fact that there was no formal outcome, ie that the meeting was informal and no warning was issued.
- Checking if the employee has any previous disciplinary warnings on file, and whether or not any such warnings are still active;
- Reviewing the employee's written appraisals to check whether or not a similar problem has been discussed at an appraisal review;
- Talking to other employees who may have relevant information;
- Checking telephone records and/or computer records (subject to the laws on interception of communications and the employer's own policies on this matter);
- Reviewing any other relevant documentation; and
- Holding an investigatory interview with the employee to establish the facts.
- Be in breach of the employee's contract; and
- Create the impression that the employer has judged the employee "guilty" without first having conducted a proper investigation.
- State that the interview will be held under the employer's disciplinary procedure;
- List the matters that will be discussed;
- Provide reasonable detail of the specific incidents that are thought to have occurred, or of any allegations or accusations;
- Provide details of any accusations or information provided by witnesses;
- Inform the employee that he or she has the right to be accompanied at the interview (see Permitting a Companion at a Disciplinary Interview); and
- State that the outcome could be disciplinary action or dismissal, as appropriate.
- Engage in a full and frank two-way discussion about the matter under review;
- Allow the employee a full opportunity to put forward his or her side of the story; and
- Decide, after the conclusion of the interview, whether or not it is appropriate to impose a disciplinary penalty and, if it is, what type and level of penalty should be imposed.
- The length of service and general record of each of the two employees;
- Whether or not the employees had previous disciplinary warnings;
- Any mitigating factors;
- The degree of accountability for the negligent act in question;
- The level of seniority of the employees; for example, it might be reasonable to expect a greater degree of responsibility from a senior or experienced person than from a more junior or less experienced employee; and
- How the employees responded to the allegations when interviewed, for example whether they admitted the offence and apologized, or tried to deny or conceal it.
- The nature of the employee's misconduct;
- The improvement required, ie a clear indication of how the employee is expected to behave in the future;
- Any timescale for improvement, which will be appropriate in cases where the problem is unsatisfactory job performance rather than misconduct;
- The period of time that the warning will remain on the employee's file;
- What the outcome will be if there is no improvement or if there is any further misconduct, i.e., the next stage of the disciplinary procedure; and
- The right to appeal against the warning.
- Be able to prove the reason for dismissal;
- Be able to satisfy the tribunal that the misconduct in question was sufficiently serious to justify the penalty of dismissal;
- Have complied with the statutory dismissal and disciplinary procedure;
- Show that it followed its own procedures properly; and
- Have treated the employee reasonably in an overall sense.
- Stealing, fraud or deliberate damage to the employer's property;
- The use or distribution of drugs on the employer's property;
- Drunkenness while on duty;
- Violence or the threat of violence;
- Deliberate accessing of sites containing pornography or obscene material; and
- Genuinely believes that the employee is guilty of misconduct; and
- Has reasonable grounds to support that belief, meaning, there is evidence to suggest that, on the balance of probabilities, the employee committed the act of misconduct in question.
- There is no evidence that the supervisor ever issued instructions to Margaret that she must now use only the new computer program. The warning for "refusing to follow instructions" is therefore unfair.
- The supervisor had not spoken to Margaret about the problem during the three months prior to the incident that gave rise to the warning. It follows that Margaret had no opportunity to know that she was doing anything wrong, or to take steps to overcome the problem.
- Margaret was given no training on the new computer program, so it was unreasonable for the supervisor to blame her for not using it adequately.
- Supervisors should not argue with their staff, or threaten them with warnings.
- There is no evidence that the interview with Margaret after she returned to work was properly convened. Margaret was not offered the opportunity to bring along a companion to the interview and there does not appear to have been any proper discussion about the problem. A disciplinary warning is neither fair nor appropriate if the employee has not had the opportunity to discuss the issue fully, and put forward his or her side of events and any mitigating factors.
This section of the XpertHR best practice manual discusses managing disciplinary issues, including disciplinary rules and procedures, setting up disciplinary interviews, the right to be accompanied, warnings, appeals, dismissal and dealing with misconduct that is suspected but not proven.
Two further sections of the XpertHR best practice manual, Conducting Disciplinary Investigations and Conducting Disciplinary Interviews, provide further information on managing and handling all aspects of discipline.
The Importance of Effective Handling of Discipline
Employers are obliged by law to introduce and operate a dismissal and disciplinary procedure. However, quite apart from this statutory requirement, disciplinary rules are necessary to set standards and make it clear to employees what conduct is and is not acceptable in the workplace. A disciplinary procedure is an essential management tool as it permits managers to deal fairly and consistently with employees who breach the rules.
It is important for employers to handle disciplinary matters professionally, objectively and fairly. When disciplinary proceedings lead to dismissal, the dismissed employee may be able to bring a claim against you in court for an unlawful termination. In these circumstances, if it is to succeed in defending the claim, the employer must be able to show that the misconduct in question was sufficient to justify the penalty of dismissal.
Dealing with Problems Promptly
When a problem arises with an individual employee's conduct, it is important for the employer to take prompt steps to investigate the misconduct.
Dealing promptly with misconduct does not mean dealing with it in haste, but tackling it without unnecessary delay. The effects of a delay could be that:
None of these outcomes is desirable. A delay in dealing with misconduct can ultimately mean that the employer has to deal with a matter that has escalated from a minor issue into a major problem. A much better approach is to seek to "nip the problem in the bud."
It is important that issues relating to an employee's conduct or performance are not saved up until the annual (or biannual) formal performance appraisal meeting. The employee will develop an understandable sense of grievance that issues have been allowed to fester, and that he or she was not given an opportunity to understand the problem at the time and provide his or her side of the story. Saving up problems in this way will discredit the formal performance management system, subverting its purpose of being a forward-looking, positive and motivational process, and changing it into one that looks backward and is seen as punitive.
Disciplinary Rules and Procedures
A disciplinary procedure is a helpful management tool, permitting employers to deal fairly and consistently with employees who breach the rules or behave in an inappropriate manner at work. It provides a framework and guidelines, helping the employer to take the necessary steps to investigate, interview the employee and decide what, if any, disciplinary action to take.
Disciplinary rules are useful in all organizations, regardless of size or industry sector, as they set standards and make it clear to employees and their managers what conduct is and is not acceptable in the workplace.
It is up to each employer to determine its own rules on matters such as:
Each employment is different. While it would be completely unacceptable for safety reasons for an employee engaged as a bus driver to consume alcohol during his or her lunch hour, employers of people engaged in office-based jobs may take the view that going out for lunch and a drink or two from time to time is acceptable.
It is in employers' best interests to develop clear and comprehensive disciplinary rules and procedures, to avoid misunderstandings and ensure that employees are aware what is expected of them in their employment. The rules, procedures and related penalties must be properly communicated to all staff. This should be done during the induction that all new members of staff receive, but it may be advantageous to send out periodic reminders on specific matters and provide written notification whenever any part of the disciplinary rules or procedure is changed, or any new rule introduced.
Supervisors should be fully trained in the operation of their employer's disciplinary procedure. Training can also address the skills and behaviors that will help managers handle disciplinary issues as effectively as possible.
Managers should also be encouraged to view the company disciplinary rules and procedures constructively. This will mean seeking to use them to encourage employees whose conduct or behavior is in some way unsatisfactory to improve, rather than viewing them as a means of dispensing punishments.
The Stages of a Disciplinary Procedure
A disciplinary procedure will usually be structured in a series of stages, a typical example being:
There is no requirement to operate to follow the formula above or the number of stages precisely. It is possible to structure the procedure so that only two warnings precede the dismissal stage, as long as the process is clearly communicated to all members of staff. It is also possible to incorporate sanctions other than dismissal. For example, demotion to a job at a lower grade or a short period of suspension without pay could be listed as penalties that may be imposed as alternatives to dismissal.
A recorded verbal warning would be the normal penalty for a relatively minor first offence, or number of minor transgressions, for example a series of instances of lateness, despite informal discussions about timekeeping having taken place.
A first written warning would normally be appropriate if there was a further instance of misconduct while a verbal warning was still active on the employee's file, or where a first instance of misconduct was serious enough to justify a written, rather than a verbal, warning.
A final warning would be issued where the employee's conduct had not improved, where further specific incidents of misconduct had occurred during the lifetime of an earlier written warning, or where a first instance of misconduct was very serious.
Dismissal with notice would be the final stage if the employee's misconduct continued or was repeated while an earlier final written warning was still active on file.
It is also permissible to dismiss an employee without notice - summary dismissal - following a first act of misconduct where the misconduct in question is serious enough to justify this course of action, see Gross Misconduct).
Despite the hierarchical nature of a typical disciplinary procedure, it is not always necessary to enter the procedure at the first stage. While a stage-one verbal warning would normally be appropriate for a minor first offence, it would be more fitting to issue a written warning for misconduct that ranked as moderately serious, even if it was the first time that the employee had transgressed or broken one of the employer's rules. For example, the employer might decide to issue a final written warning following a breach of health and safety rules that, while not sufficiently serious to justify the employee's summary dismissal, was serious enough to render a verbal warning inappropriate. The key to fairness is ensuring that the level of penalty imposed is proportionate to the seriousness of the employee's misconduct.
Employers should not decide on what, if any, type of penalty to issue until:
Dealing with Problems Informally
Many disciplinary matters can be effectively dealt with informally, provided that the relevant manager does not delay in speaking to the employee. The manager should ask the employee to come to his or her office (or another private place), explaining that an issue has arisen that needs face-to-face discussion or clarification. The purpose of the meeting will be three-fold, namely to:
Because this type of meeting is informal, there will be no right for the employee to be accompanied by a colleague or other advocate.
Despite the informality, it is still a sound idea for the manager to set a date to review the employee's progress. This will communicate to the employee that the manager is serious about what he or she has said and increase the likelihood that the employee will pay heed to it. For the same reason, it is advisable for a record of the meeting to be kept. The record should show:
Conducting an Investigation
Where an employer becomes aware that there has been - or may have been - misconduct on the part of a particular employee, a full and thorough investigation into the surrounding circumstances will be necessary. The investigation might involve:
Conducting disciplinary investigations is dealt with in more detail in another section of the XpertHR best practice manual, Conducting Disciplinary Investigations.
Suspension from Work During an Investigation
It may be appropriate to suspend an employee from work for a short period of time to allow an investigation to take place. This is usually advisable where the employee is suspected of having committed an act of gross misconduct (see Gross Misconduct) but is not normally appropriate in cases of minor misconduct.
Suspension in these circumstances should normally be with full pay. This is because suspension without pay would, in most cases:
Suspension from work is dealt with more fully in a separate section of the XpertHR best practice manual, Conducting Disciplinary Investigations.
Setting up a Formal Disciplinary Interview
Following an investigation into the circumstances surrounding an employee's alleged misconduct, the employer should set up a disciplinary interview with the employee. It is as important to set up the interview properly as it is to conduct it fairly.
The interview should be arranged at a time and in a place that are convenient for the employee, as well as for the manager conducting the interview. For example, it would be unreasonable to expect a night-shift worker to attend an interview in the middle of the day at a time when he or she would normally be asleep.
The employee should be given "reasonable" notice of the interview. What is reasonable will depend on the seriousness and degree of complexity of the alleged misconduct. In the case of a single, simple mistake, a day's notice would probably be reasonable, while an allegation of theft might render it appropriate to give the employee up to a week's notice to allow him or her to prepare properly.
In cases where the employee's misconduct might lead to dismissal, it is a statutory requirement for the employer to inform the employee in writing of the matters to be discussed at the forthcoming formal disciplinary interview and that the outcome might be dismissal.
Even where dismissal is not being contemplated, it is advisable for the employer to write to the employee inviting him or her to the interview. The letter should:
The employer should, as part of its disciplinary procedure, specify which level of management has the authority to conduct formal disciplinary interviews and impose disciplinary sanctions. Where there is an HR department, the role that it plays should also be defined.
It is not generally advisable to conduct a formal disciplinary interview on a one-to-one basis, in particular if the matter to be discussed is something of a serious or sensitive nature. Typically, the employee's supervisor would conduct the interview in the presence of an HR practitioner, whose role it would be to offer advice or guidance on the process and to take notes.
Permitting a Companion at a Disciplinary Interview
Whether or not a request for a companion is reasonable will depend on the circumstances of the individual case. However, it would be unlikely to be reasonable for a worker to insist on being accompanied by a colleague with a conflict of interest or whose presence would prejudice the hearing. Neither would it be reasonable for a worker to insist on being accompanied by a colleague from a geographically remote location, if someone suitably qualified was available on site.
It is important to review any agreements with an employee's union, if applicable, to determine if the employee is allowed to bring a union advocate or other companion to a disciplinary hearing. There is no legal requirement to permit employees to bring a companion or advocate to such an interview, absent this type of agreement. If an employer permits companions in disciplinary interviews, the role that the companion plays at the interview is therefore largely up to the employee.
It is important to note that the companion does not have the right to answer questions put to the employee.
Conducting Disciplinary Interviews
The key purposes of a disciplinary interview is to:
Disciplinary interviews are discussed fully in a separate section of the XpertHR best practice manual, Conducting Disciplinary Interviews.
Deciding the Penalty
The decision as to whether or not to impose a disciplinary penalty and, if so, what type and level should be taken only after a full and thorough investigation into the facts of the case has been conducted, and the employee's version of events has been heard and considered at a properly convened disciplinary interview. To do otherwise would amount to prejudging the employee's guilt and be inherently unfair.
In some circumstances, it will be appropriate to decide that no disciplinary penalty should be imposed, for example if the employee's explanation of events results in the conclusion that he or she has done nothing wrong, or that what happened was outside the employee's control. The employee should be informed of this in writing as soon as possible after the interview.
It will be important for the employer to consider very carefully if disciplinary action is appropriate and to avoid viewing matters from a biased or limited perspective. The facts, including the employee's version of events or explanations, should be viewed objectively.
Any mitigating factors raised by the employee during the disciplinary interview should be taken into account when deciding whether or not to impose a disciplinary sanction. For example, where a disciplinary interview has been conducted in respect of an employee's mistake, if he or she has been experiencing personal problems at home, this might have resulted in concentration difficulties, which might have caused the mistake. While mistakes may well be considered unacceptable (depending on the circumstances), the employee's personal problems could nevertheless constitute a mitigating factor that might lead a reasonable employer to impose a lesser penalty than would otherwise have been judged appropriate. This is because these circumstances would indicate that the mistake was not due to negligence or carelessness.
Consistency in Imposing Disciplinary Penalties
Consistency in dealing with disciplinary matters and imposing disciplinary penalties is an important element of the fair and effective handling of discipline and performance. However, consistency does not require an employer automatically to impose the same disciplinary penalty every time a particular rule is broken. Even if the type of misconduct is the same, there may be distinguishing features between one employee's actions and another's.
Two employees might, for example, each separately be guilty of negligence that led to damage to the employer's equipment. Features that might make it reasonable for the employer to impose different disciplinary penalties include:
In situations where the employer decides to impose a harsher, or more lenient, disciplinary penalty on an employee than was previously imposed on another employee in similar circumstances, it will be important for there to be a clear record of the distinguishing features that led the employer to take that decision.
Communicating the Outcome of the Proceedings to the Employee
The employee should be informed of the outcome of the disciplinary proceedings as soon as is reasonably possible after the conclusion of the disciplinary interview. It would not be fair to keep the employee waiting any longer than necessary. In circumstances where the employee is still working normally, i.e., he or she has not been suspended, it is usually appropriate to reconvene the interview and communicate the outcome to the employee verbally. The outcome should then be clearly communicated in writing, with the reason for the decision stated.
If the outcome of disciplinary proceedings is a warning, it will be important that the wording of the warning is clear and unambiguous.
A written warning should state:
It is advisable that employers do not word written warnings too narrowly. For example, if a warning is the result of unsatisfactory timekeeping, it is advisable that it states that further instances of lateness, or any other type of misconduct, will lead to disciplinary action at the next stage of the disciplinary procedure.
It is best practice for disciplinary warnings to have a "shelf life", i.e., a defined time period after which they will no longer be active. This means that, if further misconduct occurs after the time period has expired, the warning will not be taken into account when deciding what type of penalty to impose.
There is no law governing how long a warning should remain active on an employee's record. It is up to each employer to decide on the periods of time that are appropriate for its business. Typically, a verbal warning might remain active for six months, a first written warning for 12 months, and a final written warning for 18 or 24 months. The employer's disciplinary procedure could also allow management some discretion as to the relevant time periods, so long as the extent of the discretion is clearly stated in the disciplinary procedure.
Employers should have a clear procedure for dealing with warnings, including a statement about what will happen to expired warnings - in other words, whether they will be destroyed or simply disregarded for disciplinary purposes. Although there is no requirement physically to remove a warning from an employee's file once it is spent, it is good practice to do so, or for those in charge of the file to ensure that the details are not seen by, or passed on to, others. Otherwise, even if the warning has formally ceased to have effect, knowledge of it might influence those responsible for investigating any subsequent alleged misconduct on the same employee's part.
The final stage in a disciplinary procedure is dismissal. Dismissal should be regarded as a last resort and - other than in cases of gross misconduct - should be implemented only when an employee has committed a further act of misconduct while subject to a final written warning.
Dismissal for misconduct following a series of warnings will require the employer to give the employee notice of termination in accordance with his or her contract of employment. Pay in lieu of notice can usually be given, so long as the amount of pay in lieu is sufficient to compensate the employee for all the contractual benefits that would have accrued if the employee had worked normally during the notice period. Giving pay in lieu of notice means that the employee's contract ends immediately.
An employee who has one year's continuous service with the employer will have the right to bring a claim for unfair dismissal to an employment tribunal. To be able to defend such a claim successfully, the employer must:
Gross misconduct is a single act of misconduct that is serious enough on its own to justify the employee's immediate dismissal. It is irrelevant whether or not the employee has received previous warnings for misconduct. This type of dismissal is known as a summary dismissal.
There is no statutory definition of what constitutes gross misconduct. It is therefore up to each employer to define what types of conduct will be regarded as gross misconduct, although any list should state that it is not exhaustive. Behavior likely to fall into this category includes:
Essentially, a summary dismissal is dismissal without notice or pay in lieu of notice. This means that, once the decision to terminate an employee's employment has been communicated to the employee, his or her employment will end immediately, meaning, at the end of that day. Salary and other entitlements up to and including the employee's last day of work must be paid, but no notice, needs be given.
It is important for employers to note that an employee who has committed an act of gross misconduct must still be treated fairly. All the procedural steps outlined in this section of the XpertHR best practice manual should still be followed. The employee is entitled to fair treatment and no decision to terminate should be taken until a full investigation has been conducted and the employee has been given a full opportunity to explain his or her conduct.
Misconduct That is Suspected but not Proven
Where an employer strongly suspects that an employee has committed an act of misconduct, but no concrete proof is available, the employer may still take disciplinary action, up to and including dismissal. A dismissal for misconduct that is suspected but not proven may be fair, provided that there has been a thorough investigation and the employer:
The Right of Appeal
Although not mandated by law, absent an agreement with a trade untion, employees need not be granted a right to appeal any disciplinary decision. It is good practice to offer such an appeal right, however. The employer should stipulate in its disciplinary procedure how, to whom and within what timescale employees must appeal. The disciplinary procedure should also make it clear that an employee lodging an appeal against a disciplinary decision should state the grounds on which he or she is appealing.
When an employee appeals, the appeal hearing should be set up within a reasonably short timescale, normally no longer than 14 days. Although this may not be possible in very small organizations, the appeal should be heard by a more senior manager than the person who took the original disciplinary decision. The manager hearing the appeal should not have had any involvement in either the investigation of the case or the disciplinary proceedings.
Margaret works as an accounts assistant in a large organization. The company recently introduced a major new accounting program designed to cope more efficiently with the work and save time. Margaret has no experience of working with this type of computer program. No training has been provided.
Three months after the introduction of the new program, Margaret's supervisor discovers that she is still doing some of her work on the old system. He challenges Margaret and an argument ensues. The supervisor takes the view that Margaret is deliberately disobeying instructions. He threatens to give her a warning.
The next day, Margaret phones work saying that she is sick. She subsequently sends in a doctor's certificate stating that she is suffering from depression, and has been advised by her doctor to take at least two weeks off work.
When Margaret returns to work two weeks later, the supervisor interviews her briefly in his office, informs her that she is guilty of refusing to follow instructions and issues her with a written warning to that effect.
Has the supervisor acted appropriately?
The supervisor has treated Margaret unfairly in a number of ways:
Questions and Answers
Why is it important for employers to have clear disciplinary rules and procedures?
Disciplinary rules are necessary to set standards and make it clear to employees what conduct is and is not acceptable in the workplace. Rules are helpful because they help employees to know where they stand in their employment on a range of issues. Disciplinary procedures are also an essential management tool to permit managers to deal fairly and consistently with any employee who breaches the rules.
Is there a set number of warnings that an employer must give an employee prior to dismissal?
There is no statutory requirement for an employer's disciplinary procedure to contain a set number of warnings. Usually, a procedure will be structured so that either two or three warnings precede the dismissal stage.
What should an employer do on becoming aware that an employee has committed an act of misconduct?
The employer should always conduct a full and thorough investigation into the facts and the surrounding circumstances, no matter how certain it is that the employee has committed the misconduct in question. The employer should remain open-minded and not jump to hasty conclusions.
When is it appropriate to suspend an employee from work pending an investigation?
Suspension from work is usually advisable when the employee is suspected of having committed an act of gross misconduct, but is not normally appropriate in cases of minor misconduct. There may be other reasons for suspending an employee, for example if there is reason to believe that he or she might cause some damage or mischief if permitted to remain at the workplace.
Who should be present at a disciplinary interview?
Typically, the employee's supervisor will conduct the interview in the presence of someone from the HR function, whose role it is to offer advice or guidance on the process and to take notes. The employee being interviewed has the right to request to be accompanied by a fellow worker or trade union official. It is not generally advisable for a formal disciplinary interview to be conducted on a one-to-one basis, in case of a later dispute about what was, or was not, said.
What is gross misconduct?
Gross misconduct is a single act of misconduct that is serious enough on its own to justify the employee's immediate dismissal. As there is no statutory definition of what constitutes gross misconduct, it is up to each employer to define what types of conduct will be regarded as gross misconduct. It will be important for employers to do this clearly so that employees and their managers properly understand the types of conduct that will lead to dismissal.
What can an employer do where it suspects that an employee has committed an act of gross misconduct, but has no concrete proof?
The employer may take disciplinary action (up to and including dismissal) where misconduct is suspected but not proven, provided that it has carried out a thorough investigation and has reasonable grounds to support a genuine belief that the employee is guilty of the misconduct in question.