Simonne McIvor, employment law solicitor at Pellys RJP Solicitors Limited, gives some guidance to managers in the transport industry on how to handle misconduct, particularly if they wish to avoid claims relating to dismissal.
Like all industries, the transport industry has its own fair share of disciplinary issues to deal with, ranging from minor misdemeanours to matters of serious misconduct. Depending on the size and resources available to individual transport companies, it is always prudent to recruit the services of a human resources (HR) professional to handle all matters dealing with disciplinary issues to ensure that the company complies with its own procedures and with the legal requirements. If there are insufficient resources to recruit an HR person then instilling good management practices will also help avoid potential claims relating to a dismissal. This article sets out the basic requirements that employers must comply with in an attempt to avoid claims relating to dismissal, particularly for misconduct being issued against the employer.
Wherever possible, try to resolve problems informally with the concerned employee, as soon as they emerge. Always make it clear that a formal process may be used if the issue is not resolved informally.
Starting disciplinary action
The Acas Code of Practice: Disciplinary and Grievance Procedures sets out guidelines to follow when embarking upon disciplinary action. Every employer should first carry out a thorough investigation before deciding to formally discipline any employee. As part of the investigation process, the employer may decide to suspend the employee on full pay, for example if it considers that the employee may hamper the investigation process. This will enable the employer to undertake the investigation swiftly and without the worry of the employee removing evidence or interfering with any likely witnesses. The important point to remember is that suspension must not be used lightly. It should be made clear to the employee that it is not a disciplinary sanction, and neither should there be any indication of the outcome of any disciplinary meeting that may take place.
Formal disciplinary meeting
Once the investigation is complete and the employer is satisfied that it has collected all relevant evidence and that a formal disciplinary hearing is necessary, the employee should be sent a written invitation to attend a formal disciplinary meeting at a mutually convenient date, time and venue. The letter should also set out specific details of the allegations made. For example, if it is to deal with the omission by a driver to undertake the daily defect checks, the letter should cite the date and time the driver failed to undertake the check. The letter should also list the documents that will be relied upon by the employer at the meeting; copies of all this evidence should be enclosed with the letter.
In the above example, if the driver failed to complete the necessary daily defect form a copy of the offending form should be included with the letter as evidence. Do not forget to inform the employee of his or her legal right to be supported in the formal meeting by either a fellow work colleague or member of a trade union. Finally, the employee should also be advised, if the allegations are found to be true, of the possible consequence that could be levied against him or her, eg a final written warning or even dismissal. Naturally, this decision can only be reached after the formal meeting is completed.
Disciplining poor performance
If the disciplinary meeting is to deal with poor performance, then the employer must have records of either notes from previous meetings or e-mails or correspondence setting out the areas of poor performance, agreeing a time period during which the employee's performance is expected to improve and how this is to be achieved. This could include offering the employee an opportunity to train in a specific area to enable him or her to acquire better skills to do the job. The employer would also be advised to carry out regular appraisals with the employee to give an honest assessment of performance and allow the employee to raise any concerns. If stress could be a reason for an employee's poor performance (maybe he or she is struggling with an increased workload) then special care needs to be taken. Wherever possible, the employer should try to take away some of the workload to avoid placing stress on the employee.
Explaining the meeting
At the formal disciplinary meeting, explain the purpose for the meeting and that it is also a formal process. Set out the facts: if it is to deal with a driver who has persistently failed to comply with the legal requirements to undertake daily defect checks on the vehicle, then this must be explained to the driver. Discuss with the employee the evidence collected from the investigation, eg in the example above, copies of the incomplete daily defect sheets/forms. It is always prudent to have someone take notes to record the meeting. It is possible that in the course of the meeting, the employee may submit new matters, such as the form had been completed but he or she then submitted a draft version. In this case, adjourn the formal meeting and fully investigate any claims made by or against an employee before reconvening the formal meeting, but only after concluding the investigation into any new claims. Do not forget to allow the employee to put his or her side of the story at a meeting before making any final decision. Remember to provide the employee with a copy of the recorded notes of the meeting and ensure that the employee agrees that the notes are a true record of the meeting.
If the decision results in dismissal, unless it is for gross misconduct, ensure the employee is given notice (or pay in lieu of working the notice period) in accordance with the terms of the contract plus all contractual entitlements and benefits up to termination date. Regardless of the outcome, always remember to confirm the outcome and the reason for dismissal in writing and, finally, inform the employee of the right to appeal against the decision, the time frame during which an appeal must be submitted, the name of the person who will hear the appeal, and the need to set out the grounds of appeal in writing.
In the event that the employee requests an appeal against the outcome of the disciplinary hearing, if possible a different manager should hear the appeal. This person should write and acknowledge receipt of the request, investigate the grounds of appeal and write to the employee inviting him or her to attend an appeal meeting. The letter should explain that the employee has the right to attend the appeal meeting with either a fellow work colleague or member of a trade union. The appeal meeting should be held on a mutually convenient date.
At the appeal meeting, a note taker should be present to take notes of the meeting and the grounds of appeal reviewed. The employee should be allowed to put forward his or her side of the story and, wherever possible, any relevant evidence should be used to put forward the company’s position. The meeting can be adjourned to consider new matters, to investigate further, or gather fresh evidence in relation to the grounds of appeal.
Once the employer is satisfied that it can reach a decision, it should deliver the decision to the employee and confirm the same in writing. The employee should be told that this concludes the disciplinary process unless the internal process has any further stages of appeal, eg to the managing director or CEO of the business on compassionate grounds. In the event the outcome of the disciplinary hearing is dismissal, and the outcome of the appeal hearing is to revoke the earlier decision, then the employee may be reinstated with immediate effect and will continue to receive all payments from termination date. Conversely, if the decision of the appeal meeting is to uphold the disciplinary decision to terminate the employment then no further payments will be made and the P45 should be issued to the employee.
The above sets out the best practice basic disciplinary procedure. The procedure is not required under law but, if the employer has failed to comply with this basic process and the employee issues a claim in the tribunal, the judge is entitled to enhance any award against the employer by up to 25%. It is therefore crucial to ensure that the process is complied with fairly and without unnecessary delay.
Last reviewed 24 April 2012