Q. Is it a legal requirement for an employer to have a disciplinary procedure?
A. Yes, irrespective of the number of employees. If you only have one employee you are still obliged to have one in place.
Q. Does the disciplinary procedure have to be referred to in your employee contracts?
A. Yes. It is a legal requirement to provide all employees, from day one of employment, with a written statement of their terms (an employment contract) and the disciplinary procedure should be referred to in that, clearly directing the employee on how/where to access it. We recommend the actual policy is then set out in a separate document, independent of the employment contract.
Q. What points should the disciplinary procedure cover?
A. It should set out the procedure to be followed, e.g., methods of communication, anticipated timescales, the right to be accompanied, how any decisions will be notified and that the employee has a right of appeal.
It should specify whether or not it is intended to be legally binding and we suggest that a disciplinary policy is not, so that the process can be amended or changed, if necessary, without risking a breach of contract claims.
It should also set out the various possible outcomes of the process and should specify examples of misconduct and gross misconduct.
Whilst employers often like to relax the procedures for employees with less than two years’ employment (on the basis that they don’t have ordinary unfair dismissal rights) we advise that you always take advice before not following the process (or amending it) as this could still leave you exposed to discrimination claims which apply from day one of employment so get it checked before you do decide to relax the procedure.
Both the written statement of terms/contract of employment and the disciplinary procedure are very important documents, not only are they obligatory but it is important that they cover what the law requires and that they are tailored to serve the needs of the business. It is not the case that 'one size fits all'. Even if you do have these documents in place, we recommend you get them reviewed every few years to make sure you keep them up to date with legal changes and to make sure they continue to meet the needs of your business.
If you need contracts or policies or wish to have your existing ones reviewed by our specialist employment law solicitors, contact BRIDGE at enquiries@bridgeehr.co.uk or call on 01904 360295.