Your HR questions answered

NPA Essential

Your HR questions answered

Sarah Simcott, employment law adviser at Ellis Whittam, answers some questions frequently received from NPA members

How do I deal with disciplinary matters?

1. Investigate with any employees who witnessed the incident or may have been involved in it, then question the employee who is alleged to be at fault. Determine whether there is sufficient evidence of a case to answer. Be impartial: look for evidence that points to them not being guilty as much as for evidence that points to guilt.

2. Invite the employee to a disciplinary hearing. If there is sufficient evidence pointing to culpability, appoint a new person to deal with the disciplinary matter and send an invitation letter with 48 hours notice of the hearing and ensure that it includes:

a) Detail of the allegations
b) Evidence of the misconduct
c) Confirmation of the right to be accompanied by a trade union representative or colleague
d) details of the possible outcome.

3. Conduct the disciplinary hearing. The meeting should be conducted by somebody senior to the employee who was not involved in the investigation. During the hearing you should discuss all evidence with the employee to enable you to determine what you believe happened.

When deciding the level of sanction, you should consider the employee’s length of service, how any similar cases have been dealt with in the past and any mitigating circumstances. The decision should be confirmed in writing and a right of appeal offered if a disciplinary sanction is issued.

4. If the employee appeals against the disciplinary outcome, a third person should conduct the appeal hearing. This person should be more senior if possible. The appeal should focus on the grounds of appeal and any procedural shortcomings in the earlier steps to ensure they are made good.

How to deal with performance related issues?

Assess where the employee is falling short. Once it’s clear that the employee knows what he/she should be doing but is failing to do it, then performance management can commence. Where possible, an informal process should be followed initially.

If there is insufficient improvement in a set period of time, the employee can be formally invited to a performance management hearing where the concerns are addressed. If necessary, a performance improvement plan can be issued at this stage. Clear, measurable targets should be set with a clear timeframe.

At the end of that period, if the employee has not reached the required standard a formal warning can be issued following a formal performance management hearing. This process should be repeated until the employee has received a written warning and final written warning and can then be dismissed with payment in lieu of notice.

What do I do when I know an employee is too unwell to return to work?

1. Hold a meeting with the employee to establish when they think they’ll be well enough to return to work and obtain permission to seek a medical report where necessary.

2. Where the employee is disabled (or potentially disabled) make reasonable adjustments to the role that will enable the employee to resume work.

3. If there is no reasonably foreseeable return to work, invite the employee into a formal medical capability meeting by letter. Provide 48 hours notice and including the right to be accompanied by a work colleague or trade union representative.

4. Confirm the decision in writing and, if the employee is dismissed, provide them with the right of appeal.

A team of professional qualified employment law advisers are available to assist NPA members. Call 0330 123 0558 or email employmentadvice@npa.co.uk.

For help on this or other employment topics, contact the NPA Employment Advisory Service on 0330 123 0558 or employmentadvice@npa.co.uk.

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