An employer's guide to disciplinary proceedings

Guidance on dealing with disciplinary issues

It is rare in any organisation that all employees operate to the required standard of performance, or always conduct themselves in an appropriate manner. For this reason, it is important for organisations to have policies and procedures setting out the standards expected and the process for dealing with shortfalls in performance and conduct.

The importance of a procedure

Having a disciplinary procedure enables an organisation to set out the behaviour expected of its employees and provides a process to ensure consistency and fairness in approach. The aim of the procedure should not be punishment, but improvement of an employee’s behaviour or conduct. Sometimes this can be achieved by an informal discussion or counselling. A more formal process may have to be applied if the informal process does not bring about improvement, or the nature of the employee's misconduct means that informal action is inappropriate.

Download out example disciplinary procedure. This procedure allows for an informal stage, and takes into account the ACAS Code of Practice on Disciplinary and Grievance Procedures (“the ACAS Code”). Our example procedure enables organisations to include additional verbal or recorded oral warnings at the first stage, even though this is not required by the ACAS Code.

The ACAS Code provides guidance to both employers and employees and sets out key principles that should apply when handling a disciplinary or grievance matter. Although the ACAS Code applies to both conduct and performance issues and, whilst the principles of the Code should be applied for both, we would advise that organisations have two separate procedures, one for dealing with conduct issues and one for dealing with performance issues. This is because  performance issues do not always involve deliberate misconduct or inaction by the employee, but may represent an inability to achieve the expected standard. Accordingly, it is good practice to adopt a more supportive approach in performance/capability cases.  For more information, see our guidance on dealing with performance issues and an example capability procedure.

The ACAS Code of Practice

Where an employee has been dismissed for a conduct issue and the matter proceeds to an employment tribunal, the tribunal will have regard to whether there is a potentially fair reason for dismissal and whether the organisation has followed a fair procedure. In deciding whether a fair procedure has been followed, the employment tribunal will look to see whether the organisation has followed its own procedure, but is also obliged to consider whether the relevant provisions of the ACAS Code of Practice have been adhered to.

If an employer has failed to follow the ACAS Code, any award may be increased by up to 25 percent. Similarly if an employee has failed to follow the ACAS Code then any award may be reduced by 25 percent.

Disciplinary rules

The ACAS Code provides that an organisation should set its rules and procedures down in writing and that they should be clear.  Any organisation looking to discipline an employee for a conduct issue must be able to show that the employee knows the standard of conduct expected. For this reason it is important that an organisation sets its rules out in writing.

It is for each organisation to decide upon its own disciplinary rules but, typically, an organisation will have rules covering health and safety, time-keeping, use of organisational facilities, discrimination, bullying and harassment, absence reporting and other acts or omissions which could constitute gross misconduct. The ACAS Guide which accompanies the Code advises that rules are more likely to be effective if those covered by them, and those who are operating them, accept them as reasonable.

There should be one set of disciplinary rules applying to all employees within the organisation, regardless of position, unless there is a compelling reason why different rules should apply. Many organisations start new employees on a probationary period. It may be that the disciplinary procedure makes separate provision for  employees in the probationary period allowing, the employer to use a compressed approach to disciplinary issues. 

On the basis that most probationary periods are for three or six months, an employee dismissed during the probationary period would have insufficient service to claim unfair dismissal (providing that the employee does not claim that he was dismissed for an 'automatically unfair' reason or for a reason relating to political opinion or affiliation). However it is sensible to apply a fair procedure in any event, as employees with less than the requisite service to claim unfair dismissal are still able to bring other claims, such as claims for discrimination.

There is no requirement for disciplinary rules and procedures to actually form part of the employee’s contract. In fact, it is easier for an organisation if disciplinary rules are not contractual, as this enables the organisation to change and update the rules from time to time without obtaining the employees' agreement to the change. Any changes or amendments should nonetheless be communicated to the workforce. 

Further, keeping disciplinary rules and procedures non-contractual prevents an employee from claiming, in addition to any unfair dismissal claim, that the dismissal was in breach of contract (wrongful dismissal) because the disciplinary process had not been followed correctly.  

Communicating the rules

All employees are entitled to a written statement of employment particulars, which for employees starting on or after 6 April 2020 should be given on or before the first day of employment. Statement of terms and conditions. This provision does not require employees to be provided with a copy of the disciplinary rules, but they should be given a written note about disciplinary rules and procedures and how to obtain them.   

Even better would be to provide all employees with a copy of the disciplinary rules when they start employment and during the employment provide written notification of any changes, ideally obtaining a signed receipt from the employee. This would help an organisation demonstrate that an employee was notified of the rules.

The ACAS Guide provides that special attention should be paid to communicating the rules to employees whose reading ability or ability to read English is limited; who have a disability which may impact on their ability to read or understand the rules; and to those without recent experience of the work environment.  

Applying the disciplinary process

The ACAS Code provides that there are key elements to a fair disciplinary process.  They are as follows:

1. Establish the facts of each case

No disciplinary action should be taken until a proper investigation has been carried out. The level of investigation will vary depending on the circumstances of the case.  However, any investigation should be carried out promptly and without unreasonable delay.

It may be necessary to suspend an employee whilst an investigation is carried out.  An organisation should avoid suspending an employee as a 'knee-jerk' response but should consider whether suspension is appropriate and necessary given the circumstances (for example where their presence at work may inflame a situation or where they could interfere with the investigation). Any suspension should be on full pay and it should be made clear that suspension is not, in itself, a disciplinary action. The suspension period should not be unreasonably long, and if it becomes necessary to extend the suspension period, then the employee must be kept informed.  LETTER SUSPENSION FROM WORK.

For misconduct cases, the ACAS Code states that “where practicable, different people should carry out the investigation and the disciplinary hearing”. The investigation may involve gathering evidence and/or taking statements from witnesses, as well as an investigation meeting with the employee. Although it is not strictly necessary to give an employee advance notice of an investigative meeting, unless the organisation’s procedure provides for this, giving notice is best practice. INVITE TO INVESTIGATION MEETING.

There is no statutory right to be accompanied at an investigative meeting. However, an organisation’s own procedure or custom and practice may provide that employees are permitted to be accompanied during an investigation. In any event consideration should be given to whether it may be appropriate in some circumstances to allow an employee to be accompanied at this stage e.g. because of the employee’s disability; any difficulties understanding English; if the employee is under 18 years old; or if the matter could potentially result in dismissal. INVESTIGATORY MEETING CHECKLIST.

No disciplinary action should be taken at the investigative stage, prior to any disciplinary hearing being conducted. Once the investigation is complete, it is then for the organisation to decide whether or not the matter should proceed to a disciplinary hearing.

2. Inform the employee of the problem

If it is decided that there is a case to answer, the employee should be notified in writing. The notification should advise the employee of the alleged misconduct using express terminology. No action can be taken for misconduct that has not been clearly put to the employee prior to the disciplinary meeting. The notification should provide the employee with sufficient information to understand the case against them and the possible disciplinary outcome so that the employee can prepare a response. The notification should include copies of any written evidence and it is prudent to list in the notification all documents enclosed. 

The employee should be given written notice of the time and venue for the disciplinary hearing, sufficiently in advance of the hearing to allow the employee to prepare. Some disciplinary procedures provide minimum periods of notice of a disciplinary hearing. The notice required must be reasonable, but this will vary depending on not only the seriousness of the matter but the amount of documentation that the employee has to consider ahead of the disciplinary hearing.

In the written notification the employee should be advised of the right to be accompanied LETTERS INVITING TO DISCIPLINARY HEARING (GROSS MISCONDUCT), INVITING TO DISCIPLINARY HEARING (MISCONDUCT), INVITING TO DISCIPLINARY HEARING [REPEAT OFFENCE] [GUIDANCE ON RIGHT TO BE ACCOMPANIED FOR EMPLOYEES AND COMPANIONS.

3. Hold a meeting with the employee to discuss the problem

A disciplinary hearing should take place with the employee without delay, provided that the employee has had sufficient time to prepare. Consideration should be given to whether or not any reasonable adjustments may be required if the employee is disabled.

The ACAS Code states that both “employers and employees (and their companions) should make every effort to attend the meeting”. If an employee is unable to attend due to illness or circumstances beyond their control, the employer should re-arrange the meeting. The ACAS Code does provide that if an employee continues to be unavailable for a disciplinary hearing, the organisation may make a decision in the employee’s absence. However any compelling reasons for continued unavailability should be considered, and allowances should be made in certain circumstances. The employee should be informed that a decision may be made in their absence and consideration needs to be given to all the available evidence. If you are contemplating taking action against an employee in their absence, we would suggest you speak first to your HR Rely Advisor. LETTER FOR RESCHEDULING DISCIPLINARY MEETINGS (REPRESENTATIVE UNAVAILABLE/OTHER REASONS and [LETTER FOR RESCHEDULING DISCIPLINARY MEETINGS: FAILURE TO ATTEND FIRST HEARING].

Where practical, the person conducting the disciplinary hearing should not have been involved in the investigation process and a member of staff or HR should be present to take notes of the hearing.

At the hearing the complaint against the employee should be explained and the evidence presented. The employee should be given the opportunity to state their case and respond to the allegations. The ACAS Code states that the employee should “be given a reasonable opportunity to ask questions, present evidence and call witnesses”. If either the organisation or the employee wishes to call witnesses, they should give the other party advance notice.

It may be necessary to adjourn the hearing, either to investigate points further or because the employee becomes upset or angry. The hearing should always be adjourned before any decision is made to allow for a review of the meeting and documentation. It is also advisable to check the employee’s disciplinary record and to ensure, with the guidance of HR, that action being taken is consistent with previous instances of a similar nature. See DISCIPLINARY HEARING CHECKLIST AND DISCIPLINARY HEARING FORM]

4. Allow the employee to be accompanied at the meeting

An employee has a right to be accompanied by a companion if the hearing could result in a formal warning being issued, the taking of some other disciplinary action (e.g. suspension without pay or demotion) or could result in the confirmation of a warning or some other disciplinary action (i.e. appeal hearings). The employee may be accompanied by a companion of their choosing who is either a fellow worker, trade union representative or an official employed by the trade union. Where the trade union representative is neither an employee of the organisation nor an employed official of the trade union, they must have been certified by the union as being competent to accompany a worker and can be required to produce these credentials prior to the hearing.

The companion may confer with the worker and if the employee wishes, may put the employee’s case, sum up the case and respond on the employee’s behalf to any view expressed at the hearing. The companion is not allowed to answer questions on behalf of the employee.

If the chosen companion is unable to attend the hearing on the proposed hearing date, the employee can suggest an alternative time and date, but it must be reasonable and no more than five working days after the day originally proposed.

5. Decide on appropriate action

An adjournment should always take place to consider whether the case has been made out and whether disciplinary action is appropriate. The length of the adjournment will vary depending on the circumstances and matters to be considered.

The ACAS Code states that “where misconduct is confirmed, or the employee is found to be performing unsatisfactorily it is usual to give the employee a written warning”. It provides that if there is a further act of misconduct within the timescale set, then this would normally result in a final written warning.

If the nature of the misconduct is sufficiently serious, and the procedure allows for it, an organisation may apply a final written warning as the first disciplinary sanction. Any warnings given should set out the nature of the conduct, what change is required and set out how long the warning will remain “live”. The employee should be advised of the consequences of any further misconduct.

All decisions should be taken at the appropriate level of seniority (often specified in the organisation’s disciplinary procedure). If the decision is made to dismiss the employee for misconduct, the employee should be advised as soon as possible of the reasons for the dismissal, the date on which their employment ends, what the notice period is, and whether the employee is to work their notice or be paid in lieu. As with all disciplinary action, the employee should be informed of the right of appeal. LETTERS FOR STAGE ONE – FIRST WRITTEN WARNING, STAGE 2 FINAL WRITTEN WARNING, LETTERS DISMISSAL FOR MISCONDUCT (WITH NOTICE), DISMISSAL FOR GROSS MISCONDUCT.

Where the conduct is serious, for example an act of gross misconduct, the decision made may be to dismiss the employee without notice and without pay in lieu of notice for a first offence. It is important to note that, just because an act of gross misconduct is believed to have been committed, dismissal is not an 'automatic' sanction. It is still necessary to consider and explain the reasons why dismissal is an appropriate sanction. 

Before deciding on a disciplinary penalty, all circumstances should be considered, including but not limited to the following:

• whether the rules advise what the likely penalty would be for the conduct in question
• what penalties have been applied in similar cases in the past
• the employee’s disciplinary record
• the circumstances of the case and whether they make it appropriate to apply a lesser sanction than would normally apply
• whether the sanction is reasonable in all the circumstances

The ACAS Guide provides that any relevant circumstances should be taken into account and gives the following as examples; “health or domestic problems, provocation, justifiable ignorance of the rule or standard involved or inconsistent treatment in the past”.

If the matter is one that would normally warrant dismissal, an organisation may wish to consider alternatives to dismissal such as suspension without pay, demotion or loss of seniority or disciplinary transfer provided that the organisation is able to impose such a penalty under the disciplinary rules and/or contract of employment. Alternatively, the employee may be prepared to agree to the sanction as an alternative to dismissal.

Particularly where the decision made is to dismiss, whether with notice or summarily on grounds of gross misconduct, it is strongly advisable to meet the employee to communicate the decision, the reasons for the dismissal, when the dismissal takes effect and how to exercise their right of appeal. This should then be confirmed in writing. Where dismissal is only communicated by letter, the date of dismissal may be delayed if the employee has not read, or had a reasonable chance to read, the letter. 

6. Provide employees with an opportunity to appeal

The right of appeal should apply after any disciplinary sanction has been applied. The ACAS Guide suggests that an organisation may wish to set a time limit for employees to lodge an appeal and suggests five working days.  If an employee lodges an appeal outside of the timescale set out in your procedure, you should avoid automatically disallowing the appeal, but consider whether it is appropriate to consider the appeal outside the time period. You may wish to seek advice from your HR Rely advisor.

Normally, once a dismissal has taken place and has been communicated to the employee, this will have the effect of ending the contract of employment. Some contracts do provide that if an employee appeals a dismissal decision, the employment will be treated as continuing until the outcome of the appeal hearing. However, this is unusual. 

Where an employee appeals, an appeal hearing should take place without unreasonable delay.  The ACAS Code states that the time and place should ideally be agreed. The appeal should be dealt with impartially by ensuring, wherever possible, that the person conducting the appeal has not been previously involved in any stage of the disciplinary process. The right to be accompanied (see above) applies to the appeal hearing also. INVITE TO APPEAL HEARING.

The appeal hearing could either review the original decision (taking into account the particular grounds of appeal put forward by the employee) or take the form of a complete rehearing. A complete rehearing can be helpful if the previous process is clearly flawed, as the rehearing may serve as an opportunity to rectify earlier mistakes. If new matters arise during the hearing, it may be appropriate to adjourn the hearing for further investigation. In any event the appeal should always be adjourned prior to any decision being made. Whether or not the appeal outcome is fed back to the employee in person, it should also be confirmed to the employee in writing. The outcome might be to overturn the original decision or to apply a lesser sanction, but not to apply a greater penalty. If further, more serious matters come to light a new disciplinary hearing should be convened. APPEAL HEARING CHECKLIST.

Special cases

The ACAS Code provides that there are some circumstances requiring special consideration, for example, when dealing with a trade union representative under the disciplinary procedure.  In those circumstances, whilst the normal disciplinary procedure will apply, the ACAS Code advises that, with the employee’s agreement, you should discuss the matter with an official employed by the union. Care needs to be taken that applying the disciplinary process is not seen as an attack on the union, and to ensure that action is not taken against an employee for carrying out their union activities, which is unlawful.  If you are considering disciplinary action against a trade union representative, please contact your HR Rely Advisor.

Another special case provided for in the ACAS Code is where an employee is charged with or convicted of a criminal offence. This must not automatically be treated as reason for disciplinary action but instead consideration should be given to whether the nature of the charge or offence has an effect on either the employee’s suitability to carry out their role, or on their relationships with their employer, colleagues or customers (See guidance below on Criminal Conduct by employees and potential employees). 

If the matter warrants disciplinary action, an organisation does not need to await the outcome of a prosecution before progressing the matter themselves. However it is prudent to consider what impact the investigation will have on any criminal proceedings. It is recommended that you contact your HR Rely advisor prior to commencing any investigation where criminal proceedings are pending.

There may be circumstances where the nature of a criminal offence does not affect the employee’s suitability to continue working but the employee is unable to attend work either because they are in custody, on remand or the nature of the bail conditions prevents them from carrying out their role. In these circumstances an organisation may have to decide whether or not they are able to keep the job open bearing in mind the needs of the business, how long the employee is likely to be away from work and how the role can be covered. If these circumstances arise, we suggest you contact your HR Rely advisor.

Care needs to be taken where an employee’s disability may be a factor in relation to their misconduct. If disciplinary action is taken but cannot be justified, the employee may have a claim for disability discrimination. Where disability may be a factor, advice should be sought from your HR Rely advisor.

Record keeping

Any investigative, disciplinary or appeal hearing minutes should be given to the employee in a timely manner. Where possible, it is sensible to ask the employee to sign minutes at the end of the meeting.

The ACAS Guide advises that organisations should keep records of any disciplinary cases that they deal with. The records should include:

• the complaint against the employee
• the employee’s defence
• the findings made and actions taken
• the reason for the actions taken
• whether an appeal was lodged
• the outcome of the appeal
• whether any grievances were lodged during the disciplinary procedure
• any subsequent developments
• notes of any formal meetings

Such records should be kept confidential and, to ensure compliance with the Data Protection Act 2018, kept no longer than is necessary.  However, as a minimum we would advise that such records be kept for at least six months. For most employment tribunal claims (whether unfair dismissal or discrimination) an employee has three months to bring a claim (although there are circumstances when the Tribunal can extend this time period).

Guide to stress absence during disciplinary proceedings

It is becoming increasingly common for employees who are facing disciplinary proceedings to submit a fit note signing them off work on account of stress.

For detailed guidance on handling this situation see our guide to stress absence during disciplinary proceedings.

Guide to using anonymous statements

In any disciplinary investigation, witness statements are likely to form a substantial part of the evidence. Unfortunately, not all witnesses are eager to come forward and give formal statements. Whilst anonymous statements may be taken to protect the identity of these individuals, care must be taken to ensure that the reason for the anonymity does not impact the credibility of the evidence. This guide advises employers of the safeguards that should be put in place to balance the need to protect certain informants against the need for a fair and transparent investigation.

When should an anonymous statement be taken?

At first instance, all witnesses should be approached with the intention of taking named, signed statements. Such statements should be taken in private and the need for confidentiality should be expressed to all parties involved in the matter. In many cases this will cause little problem as most employees will feel duty bound to cooperate. To encourage as many statements as possible to be taken in this way you must ensure that you honour the confidentiality requirement and take all reasonable measures to ensure that the informant is not subject to any detriment for making the statement. However you should make sure that the witnesses understand why and how the statements are to be used and that they may be disclosed to the person accused as part of the disciplinary process.

If an employee requests anonymity,  the reason behind their request should be closely analysed. If there is a real and legitimate fear of physical reprisal against them for making the statement, anonymity may be the only reasonable way of obtaining the evidence.

If this is not the case, the employer must question whether the request for anonymity places doubt on the credibility of the evidence. For example, is the reluctance of the informant to put a name to the statement due to a lack of belief in that statement or could there be an ulterior motive? Any investigating officer or disciplinary officer should, however, show that they have considered this point and that they have given appropriate weight to the evidence accordingly. Basing a decision solely on anonymous statements is unlikely to be reasonable and advice should be taken from your HR Rely advisor if you are left in this situation.

When deciding what weight to give to an anonymous statement, an employer must balance the need to protect the informant with the right of the accused to know the case against him. A tribunal looking at any subsequent dismissal will use this to determine whether the employer’s investigation was within the band of reasonable responses.

Protecting anonymity

In all cases where statements are to be taken anonymously the witness must be informed that, while all reasonable steps will be taken to protect their anonymity, no guarantee of complete confidentially can be given.

In some cases the circumstances of the case may make the process of anonymity pointless. For example in a case in which an employee is alleged to have attacked the witness, it is likely that the mere fact a statement has been made will be enough for the accused to identify that witness.

A less immediate risk will arise is if any criminal or civil proceedings are brought in relation to the matter, including at an employment tribunal. The accused employee would then likely seek disclosure of the witness’s identity.

If the witness is happy to proceed in giving the anonymous statement all efforts must be made to remove clues to their identity. The most obvious step needed is to remove any reference to their name from the statement. Any references which may lead to identification should also be removed. More care is likely to be needed within small businesses where individuals are easily identifiable.

What steps can be taken to ensure a fair disciplinary procedure is followed?

The use of anonymous statements can potentially put the accused employee at a disadvantage by preventing them from being able to challenge that person’s evidence. Employers must therefore put safeguards in place to ensure that a fair hearing is undertaken.

In Linfood Cash and Carry Ltd v Thompson [1989] the Employment Appeal Tribunal (EAT) set out the following guidelines for employers in relation to anonymous statements:

• The statement should be taken in writing, with all identifying remarks included. (If required, anonymity should be achieved by editing copies of the original statement).
• The investigating or disciplining officer should pay particular attention to:
  
  
  • the date, time and place of each or any observation or incident in the statement;
  • how clearly and accurately the witness was able to observe to incident;
  • whether there is any relevant circumstantial evidence (which may make certain details memorable to the witness); and
  • whether the witness has any reason to fabricate their evidence.
• The statement should then, where possible, be compared to other statements to see if these corroborate with and verify the witness’s evidence.
• Where appropriate, tactful enquiries should be made of the witness’s character and background to help assess the credibility of their evidence.
• Consideration should be given to whether the disciplinary process should continue given the witness’s fear of identification.
• If the disciplinary process continues, each member of management responsible for each stage of that process should re-interview the witness to ascertain what weight should be given to the statement.
• The written statement, with the necessary omissions to protect the witness’s identity should be made available to the accused employee and his representatives.
• The disciplinary meeting should be adjourned if questions arise in relation to the witness’s evidence. The disciplinary officer should then put the questions to the witness.
• Notes taken at meetings throughout the disciplinary process should be precise and full.
• Any evidence provided by the investigating officer should be submitted in written form.

These guidelines should be followed as fully as possible during the disciplinary process. However the EAT did note that "each case must depend upon its own facts, and circumstances may vary widely". In extreme circumstances where the threat of physical violence is real, it may be deemed permissible within a fair disciplinary process to withhold the statements from the accused employee altogether, but to still allow the disciplinary officer to consider them. Such a decision should not however be made before discussing the precise circumstances of the matter with your HR Rely advisor. Ordinarily disciplinary decisions should only be based upon evidence which has been put to the accused.

Criminal conduct by employees and potential employees

It is not unusual for employers at some point to have to deal with employees, or potential employees, who have either been charged with a criminal offence, convicted of a criminal offence or whose conduct in or outside of work may amount to a criminal offence. 

Dealing with criminal convictions at the recruitment stage

Except for work in specific sectors e.g. hospitals or schools, or particular types of work such as  the administration of justice, it is unlawful for an employer to ask prospective candidates for details of any 'spent' convictions. A candidate is under no obligation to disclose a spent conviction.

A conviction is deemed to be 'spent' after a specific period of time has elapsed from the date of the original conviction, provided that the individual has not re-offended. For example, as the law currently stands, for an offender who has received a fine, community punishment order or curfew, it will be 1 year before the conviction is spent. A custodial sentence of up to 6 months will be spent after 2 years. However, where an offender has been given a custodial sentence of between 6 and 30 months, the conviction will only be spent after four years. For more serious cases where an offender receives a custodial sentence of between 30 months and 4 years the conviction will be spent after 7 years. A custodial sentence of over 4 years will never be spent and must always be disclosed. 

Under the Rehabilitation of Offenders Act 1974 (“ROA”) it is unlawful for the employer to use the fact of the offence, where the conviction is spent, as a reason for excluding or dismissing that person from employment. The reality is that this clause is only really of benefit to existing employees who, subject to having the necessary qualifying service, could bring an unfair dismissal claim if they have been dismissed for having a spent conviction. There is no direct legal remedy to a candidate under the ROA.

Guidance from the Information Commissioner states that an employer should not make the appointment of a candidate conditional on using their subject access rights to obtain a copy of their criminal record.  Further information can be obtained from the Information Commissioner’s website, see Employment Supplementary Guidance.

Where an employee has been charged or convicted of a criminal offence – offences outside of work

The ACAS Code of Practice on Disciplinary and Grievance Procedures specifically states that the fact that the employee has been charged or convicted of a criminal offence is not in itself grounds for disciplinary action.  The Code states that “Consideration needs to be given to what effect the charge or conviction has on the employee’s suitability to do the job and their relationship with their employer, their work colleagues and customers.”

There tend to be two types of issues that arise in these circumstances; firstly whether the employee is in a position to be available for work; and secondly whether the charge or conviction makes it difficult for the employer to continue to employ them.

Unavailability for Work

Where the employee is not able to attend work or be available for work the matter may be relatively straightforward. The employee may not be able to attend work because of any of the following:

• their bail convictions prevent them from coming within a particular geographical area which includes the workplace, and the nature of their job requires them to be at the workplace.
• they has not been granted bail and are in custody awaiting their trial.
• they have received a custodial sentence

In these circumstances it may be possible to terminate the employee’s employment due to the fact that they are unable attend for work. However the reasonableness, and therefore fairness, of such a decision will depend on all the circumstances of the case, including the following:

• how long the employee has been unable to attend for work and how long they are likely to be unavailable for work, bearing in mind that an employee with a custodial sentence may be released early for good behaviour
• how well the employer is able to cover the employee’s role whilst they are absent.

It is important that these factors are properly considered, as the primary reason for the dismissal is not necessarily the nature of the offence or conviction but the consequences of it (i.e.  the employee's unavailability for work). Comparisons could be drawn by the employee to another employee who is absent for different reasons (e.g. off sick) and therefore a broad consistency of approach should be applied.

The employer should let the employee know that they are considering whether it can continue to employ them given their unavailability for work and give the employee the opportunity to make any representations. Where the employee is on bail but with restrictions, it may be necessary to hold the meeting at a place that is convenient and does not break those restrictions. In all other circumstances the employer should allow the employee to make written representations, and permit them a reasonable amount of time to do so. 

Sometimes employers try to argue there is a frustration of contract in these circumstances.  The ACAS guide does not advocate this approach and, for employers, arguing frustration can be a risk. Frustration occurs as an operation of law when an intervening event renders the continued performance of the contract impossible. The danger is that if a court finds that frustration has not occurred, the employer is unlikely to have followed any procedure to show that the dismissal was fair.

Unsuitability to continue employment

The other issue that may arise is where the nature of the charge or conviction makes it unsuitable for the employee to continue to be employed by the organisation. There are a number of circumstances where this may apply:

• If the nature of the offence calls into question the suitability of the employee to carry out their particular role. For example, an employee who is employed as train driver who is convicted of drink driving offences whilst driving on a public highway, or an employee in the accounts team who has been charged with fraud.
• Where the nature of the offence may risk damaging the employer’s reputation.  For example, where an employee is in a role responsible for the safety of the general public but outside of work has been charged with being in possession of and under the influence of illegal drugs.
• Where the offence causes the employer to lose trust and confidence in the employee.
• Where, because of the offence, the employee’s colleagues decline to work with the employee.  This can often occur where an employee has been convicted of an offence of a sexual nature.

If any of the above apply, the organisation must still carry out a fair procedure which means conducting its own investigation and giving the employee the opportunity to state their case.  Where the employee is unable to attend a hearing due to being in custody, the employee should be advised in writing of the facts being considered and potential outcome, and be given sufficient time and opportunity to put forward written representations prior to a decision being made. 

Criminal conduct at work

Some misconduct issues that occur at work may also amount to a criminal act e.g. theft of company property. Unless there is an obligation to do so, it is for the employer to decide whether  to involve the police. However the employer should give careful consideration to the matter before deciding to do so and it should not be an automatic or 'knee-jerk' response. Even if the employer does refer the matter to the police. there is no obligation on the employer to await the outcome of the police investigation before taking action. 

It is important to remember that the police and the employer will be applying different legal tests. For an employer to demonstrate that it has fairly dismissed an employee for theft, the employer must show that it has a genuine belief that the employee has committed the act and that that belief is based on reasonable grounds following reasonable investigation (“the Burchell test”).  However for the police to secure a conviction for theft, they will have to show 'beyond all reasonable doubt' that the employee committed the act in question.

If the employer takes no steps to investigate the matter for itself, but postpones dealing with the matter until the outcome of the police investigation, it may then be difficult for the employer to take disciplinary action against the employee if the police do not press charges or otherwise pursue the case.    

Should the employer carry out its own investigation independent of any police investigation and dismiss the employee for theft, the fact that the police do not obtain a criminal conviction does not make the dismissal unfair. The question is whether the Burchell test is satisfied.

Right to be accompanied where the matter involves a criminal offence

All employees have a right to reasonably request to be accompanied at a disciplinary hearing by a colleague or trade union representative (“the statutory companion”). There have been various cases where employees have asked to be accompanied by other individuals, for example, their solicitor.

The general theme from the case law in this area is that, unless the charges are so grave that (if they are made out) the employee would be unable to carry out their profession/role elsewhere, there is no right for the employee to be accompanied by anyone other than the statutory companion. For example, a teacher charged with a sexual offence might be entitled to be accompanied by a solicitor if their future ability to work with children is at risk. Similarly, a doctor might be entitled to legal representation if their fitness to practice is at issue. 

This is distinct from the situation where an employee is facing serious allegations which if upheld would make it hard for him to get another job but would not prevent him carrying out the same role elsewhere.