How Do You Decide on an Appropriate Disciplinary Penalty?

When you are considering what sanction to impose under a disciplinary procedure, as an employer you must ensure that your decision is fair and reasonable in all the circumstances.

If the decision does not meet this test, you may be exposed to a claim for unfair dismissal if your employee is dismissed; or a claim for constructive unfair dismissal if your employee resigns in response to the sanction applied.

Once you have reached the decision that an act of misconduct has taken place, there are a number of factors that will influence the next decision as to which sanction it should apply. When considering which penalty would be appropriate in the circumstances, you should take into account the nature of the act of misconduct, the seriousness of its consequences and whether or not the misconduct has occurred repeatedly or is a one-off incident.

Verbal Warning

A verbal warning would be appropriate when dealing with the first occasion of minor misconduct, such as lateness, sub-standard work, appearance/a failure to comply with the dress code, a failure to follow the requirements of the sickness absence reporting procedure or excessive personal use of your email, telephone or internet systems.

First Written Warning

A first written warning is appropriate where further instances of minor misconduct occur after a verbal warning is given, or when you are dealing with the first instance of more serious misconduct, such as:

  • unauthorised absence
  • a failure to carry out a reasonable instruction
  • inappropriate behaviour towards a colleague or customer
  • breaches of the your policies and processes, such as minor infractions of the health and safety policy, or breaches of the email and internet policy or
  • misuse of company property or equipment.

Final Written Warning

A final written warning should be issued for persistent acts of misconduct where you have already issued the employee with warnings or for a very serious act of misconduct that falls short of gross misconduct, for example:

  • persistent lateness
  • further breaches of the your policies and procedures following a written warning
  • persistent unauthorised absence or
  • serious breaches of health and safety rules, even if the incident is a one-off event.

Dismissal with Notice

The ultimate sanction for misconduct or poor performance is dismissal. When taking the decision to dismiss, you must demonstrate that dismissal in the particular circumstances falls within the ‘band of reasonable responses’. This means that you must demonstrate that a ‘reasonable’ employer could have reached the same decision.

Dismissal with notice is likely to be appropriate where a final written warning has been issued for misconduct or poor performance and further acts of misconduct take place or performance does not improve. The final act of misconduct may not be sufficient on its own to amount to gross misconduct, but would justify dismissal when taken together with earlier acts and a failure by the employee to improve or modify his or her conduct.

Dismissal without Notice

In most cases dismissal for a first offence will be appropriate only where the conduct amounts to gross misconduct. Gross misconduct can also justify dismissal without notice. Gross misconduct will arise where the act is so serious that the employment relationship between you and your employee has been irreparably damaged. You should consider carefully whether or not there has been a genuine breakdown in the trust and confidence between the company and the employee. Such a breakdown might occur where you can no longer have confidence that your employee will carry out their duties with honesty and integrity or will perform their role without causing loss or damage to customers or the company. Whether or not a specific act amounts to gross misconduct will depend on the circumstances of the case, including the nature of the employer’s business. Examples of gross misconduct include:

  • fighting or physically threatening behaviour
  • insubordination (a single act is unlikely to be gross misconduct but dismissal may be justified if, for example, the act is accompanied by offensive language)
  • discriminatory conduct, for example racially offensive language
  • theft or fraud
  • acts of dishonesty, for example falsifying time sheets or
  • a breach of the employer’s drug and alcohol policy.

Your Disciplinary Policy

Your staff handbook or disciplinary procedure should list acts that will be regarded as gross misconduct, but it should explain that employees can also be summarily dismissed for something that is not on the list, if this is reasonable in the circumstances. Where disciplinary rules have made it clear that particular conduct will lead to dismissal, it is more likely that the dismissal will be fair.

When did you last check your staff handbook and disciplinary procedure? If they are not fully up to date, get in touch to see what needs to be done to update them. If you have any questions about disciplining or dismissing an employee, call me 0118 940 3032 or click here to email me.

How Do You Handle Unauthorised Absence from Work?

What do you do when one of your members of staff keeping missing work for no apparent reason, or doesn’t come back when you expected them to after their holiday? This is known as unauthorised absence and needs to be handled quickly and efficiently.

The first thing to do is find out why someone has been missing work. Is it unusual or do they keep missing work? Next you need to get in touch with them and follow a procedure. This short video will tell you more about this.

We can help you put a procedure in place for handling these issues and can provide you with a template letter to send to staff who have been absent without your authorization. Just call us 0118 940 3032 or email for some confidential advice.

How Do You Handle Short Term Staff Sickness?

Do you have a member of staff who always seems to be off sick, or who doesn’t turn up at work as often as they should do? What’s the best way to handle this?

The first thing you need to do is find out exactly how many days your employee has been off work due to illness and why. What next? Watch this video to find out how to meet to with your employee and what you expect from them next.

If you have any specific questions about handling short term sickness issues with your team, call us 0118 940 3032 or email for some confidential advice.

Changes to Employment Law – Can You Keep Up?

Changes to Employment Law – Can You Keep Up?

Twice a year, in April and October, changes are made to UK employment law. There’s a lot that you need to know, so to help you keep abreast of the changes, I’m running one of my very popular workshops to discuss and simplify the changes. It will be held on 1 May 2014 and Hennerton Golf Club, Wargrave, Berkshire. Click here to book your place.

Here’s a summary of some of the proposed changes to due to take place this spring:

  • Power of Employment Tribunal to impose Financial Penalties on employers. The Employment Tribunal will have the power to order an employer who has lost a case to pay a financial penalty, to the Secretary of State, of between £100 and £5,000. The penalty will be imposed where the employer has breached any of the worker’s rights. Tribunal Financial Penalties apply from 6 April 2014.
  • Early conciliation to come into force. Before lodging a claim to the Tribunal, all claimants will need to notify Acas first, where conciliation will be offered. If conciliation is unsuccessful within the set period the claimant can proceed to lodge a tribunal claim. This comes into force on 6 May 2014.
  • Statutory maternity, paternity and adoption pay increase. The rate of statutory maternity, paternity and adoption rate will increase to £138.18.

In addition, there is this change, to be brought in by the end of 2014:

Managing sickness absence. A health and work assessment and advisory service is to be introduced, offering fee occupational health assistance for employees, employers and GPs. The service can provide an occupational health assessment after four weeks of sickness absence.

To keep your business fully updated, why not book your place on our workshop? The cost is just £10 +VAT, so to reserve your seat, just click here to book online.

What’s the Best Way to Deal with Underperforming Staff?

Heather works in the training department of a large IT organisation. She is responsible for designing and delivering interpersonal skills training, including communication skills, networking, and new management training classes.

Heather has excellent knowledge of how to design a training class. She includes behaviour modelling and practice into all her classes. She has also done research on what good communication consists of, how to network and what new managers need to know to be successful.

Sounds good so far!

However, people who attend Heather’s training classes often give her low ratings, saying that she has a hard time answering specific question. They say that she doesn’t seem approachable after the classes or when individuals want to ask questions.

What do you think may be causing Heather’s under performance?

How do you think a manager should address the problem of poor performance?

We’ll give you our opinion on this blog in a few week’s time. Leave a comment here to give us your suggestions!

How Do You Get More From Your Staff? Part Two

In a recent blog we looked at the importance of managing performance as a way of getting more from your staff, without dramatically increasing your costs.

Here are some top tips you can actually put into action, to get more from your people:

  • Provide a stimulating working environment that encourages members of staff to contribute to the progress of your business.
  • Encourage your staff to reach their full potential by providing opportunities to develop their skills through training and development, as well as coaching in the soft skills needed to be an excellent team member.
  • Carry out formal performance reviews on a regular basis, setting clear objectives and achievable targets; don’t wait for annual appraisals.
  • Build good relationships by providing regular informal feedback and guidance; allow your staff to air their concerns within an environment of trust and honesty.
  • Deal with issues as soon as they arise – don’t wait for them to become problems.
  • Offer a clear career path, to encourage employees to be the best they can be and stay with you for the long term.

How do you get more from your people? What have you done that has worked – or not worked? Leave a reply below.

If you still have questions about how to improve the performance of your team, come to our next workshop on 22 November 2012 near Henley. Places are free but limited, so click here for full details.

How Do You Get More From Your Staff?

The key to getting the best, and more, from your staff is through performance management. What is this and how can it benefit your business?

Performance management is a strategic and integrated approach to increasing the effectiveness of your business by improving the performance of the people who work for you. Put simply, the better the people you employ and the better the investment you make in them, the easier it will be get the best from them and to ask more from them, when you need it.

Research shows that a high proportion of businesses struggle with underperforming members of staff. They spend too much time dealing with issues of absence, sickness, poor attitudes and behaviour, failure to meet objectives and poor standards of work. Then they look to solve them through formal disciplinary procedures. Reacting to issues can be time consuming and costly, as well as very negative. Managing performance focuses on the more positive, preventative aspects of working with people.

Good performance management is about regularly assessing the performance of every individual in your team, providing regular feedback, guidance and support to reinforce good performance and highlight areas for improvement before they become a major issue.

You should also make sure that you have proper disciplinary procedures in place to deal with poor performance. In next week’s blog we’ll share some tips which, if you follow, you will only need disciplinary procedures as a last resort, when informal and positive measures have not worked.

Learn how to get more from your people at our next workshop, in November 2012 at Hennerton Golf Club, in Wargrave, near Henley. This is your chance to really get to grips with improving performance, ask all the questions you have and get some professional support. Places are free but limited. Click here to book online.

Capability vs. Disciplinary – Case Study

In a recent blog we looked at performance management and how to distinguish between issues of capability and misconduct when dealing with the underperformance of employees.  To bring this issue to life we would like to introduce you to Annabelle.

Annabelle has worked as a marketing assistant in the marketing department of retail company for 3 years, during this time she has consistently underperformed, indeed underperformance was an issue from day one for Annabelle when she failed her probationary period.

Taking a proactive approach rather than instantly dismissing Annabelle, her employer provided some coaching.  This initially had a positive effect on her performance but unfortunately in recent months things have begun to slip again, she repeatedly, and frustrating for her manager, makes the same mistakes over and over, does not take guidance well, often has to have tasks explained to her several times and makes consistent inaccuracies in proposals  .

Now a major problem for her employer, Annabelle’s mistakes are costing them money and having a detrimental effect on the marketing team and business as a whole.  Annabelle’s manager is results driven, he feels she has been given an easy ride by the business and undertakes a formal review of her work.

On the flip side, Annabelle feels that she has not been supported by her employer, that she is not being properly managed and that she lacks coherent and consistent guidance.

Annabelle’s manager invites her to a meeting to discuss the on-going issues with her performance and although this meeting is handled in a professional manner, with legitimate concerns raised and examples of underperformance given, Annabelle feels bullied and raises a formal grievance against her manager.

Both sides are now aggrieved – what is the solution?


Check out next week’s blog for the solution to this problem.



Absence Management

It is estimated that unauthorised absence costs the UK economy around £10bn-£12bn every year with employees failing to come to work for no good reason an average of 8 days each.   With the Olympics just a few short weeks away, and an expected rise is unauthorised absence predicted it important that you plan ahead to avoid unauthorised absence.

To stay on top of unauthorised absence you must put in place thorough absence policy that includes how absence will be managed; states clearly what absence is and is not permitted; details of how absence will be recorded and monitored; reporting lines and disciplinary procedures.

When you suspect an employee is taking an unauthorised day off you should:

  • Make contact on day 1 to establish the reason for the absence
  • If you are not satisfied that the reason for absence is genuine follow up with a letter on day 2
  • If the employee does not make contact and remains absent from work without notice you may have cause to assume resignation and formalise the appropriate procedures
  • If the employee returns to work you should always conduct further investigation in order to prevent a similar absence from occurring in the future and where necessary invoke a formal disciplinary process
  • If an employee takes annual leave despite being previously refused you must contact them immediately in writing and again invoke a formal disciplinary process.

Having in place a robust absence management policy will reap long term rewards by: –

  • Identifying the causes of poor attendance.
  • Providing support.
  • Increasing loyalty and motivation.
  • Deterring casual absence.
  • Identifying problems at work.
  • Improving morale and motivation.
  • Leading to reduction in absence.
  • Improving productivity.

How to Handle Disciplinary Issues and Help Employees Improve Their Performance

It is important to handle any disciplinary situation quickly, fairly and appropriately.  Small businesses often find it easier to deal with an incidence of misconduct informally particularly when the issue is minor in nature.  Hold an informal meeting to ensure that the employee understands why their behaviour has been deemed unsatisfactory and seek agreement/agree steps to ensure that the behaviour does not continue or recur. 

If informal warnings have not produced the desired result and the unsatisfactory behaviour continues, the next step is to arrange an investigation by an impartial Manager.  An investigation should include review of HR records and any previous warnings/issues that may have occurred, talking to other Managers with knowledge of the misconduct and interviewing any witnesses.

Should the investigation indicate that there is a disciplinary case to answer then you will need to invoke a formal disciplinary procedure.  Most companies operate a 3-stage process: (1) written warning, (2) final written warning, (3) Dismissal.  There is no legal obligation to start at the beginning of the procedure.  The type of warning issued will depend on the seriousness of the offence.

In the event of an act of gross misconduct, i.e. an act of such a serious nature that it fundamentally breaches the contractual relationship between employer and employee then you have the right to dismiss the employee immediately without notice or pay in lieu of notice.