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Disciplinary penalties
[ch 9: pages 60-62]Most disciplinary procedures impose penalties that increase in severity depending on whether it is a first offence or a repeat offence within a set period.
Acas recommends that most issues are best approached informally (see Chapter 3). If the procedure allows for a verbal warning, it should specify that it does not form part of the disciplinary record, and must be disregarded in any future disciplinary action.
A disciplinary procedure that complies with the Acas Code should include at least a First Written Warning followed by a Final Written Warning, with the possibility of moving straight to a Final Warning where misconduct is serious enough.
When given the warning, the employee should be told in writing of:
• the nature of the misconduct or poor performance, and what is expected, i.e. how the employee must change their behaviour or improve performance (with a timescale);
• what is likely to happen if the employee fails to change the behaviour;
• that the warning is part of a formal disciplinary process;
• that it will be disregarded for disciplinary purposes after a specified period (for example, six months);
• that the employee can appeal against the decision (with a timescale for appeal);
• whether it will be reviewed, and if so, when;
• the criteria to be used to test whether the required standard has been met; and
• support, including training, to be offered, preferably naming the manager responsible and giving a timescale for that support. Reps can help monitor this and make sure promised support and training materialises.
It is crucial that targets are realistic and achievable in the timescale provided. Reps need to challenge unrealistic targets, as they make it much easier for employers to dismiss employees who fail to make the desired improvement in time.
Consider arguing that the time allowed to meet the target should match the time span of the warning, so that members do not have the threat of further disciplinary action hanging over them once they have met the target.
Possible mitigation arguments
The arguments available for use in mitigation (i.e. to argue for a less severe punishment) always depend on the facts of each case, but possible arguments include:
• long service;
• previous disciplinary record — any live warnings;
• apology;
• evidence of having learned from the experience and willingness to change e.g. willingness to volunteer for relevant training;
• positive attitude of customers;
• previous good work record;
• relevant personal circumstances — for example, stress, ill-health, marital problems;
• medical conditions;
• provocation, history of poor behaviour by co-workers;
• treatment of other workers — the importance of consistency;
• normal workplace standards of behaviour;
• employer behaviour, for example:
◊ was it clear that this misconduct would lead to this sanction?
◊ has the employer’s own behaviour misled the employee into thinking the conduct was acceptable?
• lack of information or training;
• unclear rules;
• language problems;
• availability of other sanctions and the member’s willingness (if true) to accept these. Tell the employer the worker’s position on this and get it recorded in the minutes; and
• (if true) that the offence had little impact on the organisation (for example because nobody was affected, no money was lost, nothing was harmed, no customers saw it, and so on).