Once the hearing is over, the manager will need to decide whether he or she believes, on reasonable grounds and after a reasonable investigation, that the employee was guilty of the misconduct, and what disciplinary sanction, if any, is appropriate.
The appropriate sanction will depend upon all the relevant circumstances, including these issues:
- The nature of the act of misconduct. An act that is categorised as gross misconduct under the employer's disciplinary rules may justify dismissal.
- The circumstances in which the misconduct was committed. It may be reasonable, for example, to take into account that the act of misconduct was provoked by another employee or by the employee's working conditions.
- The disciplinary sanction that the company has imposed for similar conduct by other employees. Although no two cases are the same, it would not be reasonable for a company to impose a more severe sanction on one employee than on another for a similar offence, unless there was some significant difference between the two employees' cases. If several managers within a company have the power to deal with disciplinary issues, it is worth setting up some system for monitoring the handling of disciplinary matters, to ensure that there is a consistent approach across the company.
- The employee's previous disciplinary record. If the employee has already received a disciplinary warning for misconduct, the company is entitled to take that into account, provided the warning is still 'live'. (A warning should normally be disregarded, in the sense it should not be taken into account in ‘totting up’ whether an employee has sufficient warnings to justify dismissal, after a period of satisfactory conduct, as mentioned below (see 'Possible sanctions').) It is legitimate to take into account a previous warning even if it was for a different type of misconduct. If the employee has appealed against the previous warning and the appeal has yet to be decided, that should be borne in mind. It may be advisable to wait until the appeal has been dealt with before deciding on the sanction for the current offence, regardless of the employee's disciplinary record.
- The employee's general employment history. In deciding on the appropriate sanction, it would be reasonable for the company to take into account the position that the employee holds, the length of time the employee has been with the company and any relevant personal circumstances that may have contributed to the misconduct. A company should think carefully before dismissing an employee with long service and a previously unblemished record.
The ACAS Code gives this guidance on choosing and applying disciplinary sanctions:
- A first warning should be the usual first step if an employee is found guilty of misconduct. The warning should set out the nature of the misconduct, the improvement that is required and the timescale over which the improvement is to be achieved. The employee should be told that failure to improve, or any repetition of the misconduct, within a specified timescale could lead to a final written warning and dismissal. A record of the warning should be kept, but it should be disregarded for disciplinary purposes after a specified period.
- A final written warning should normally be issued if there is a failure to improve or change behaviour in the timescale set by a first warning. It is normally good practice to give workers at least one chance to improve their conduct or performance before they are issued with a final written warning, but where the offence is very serious or is having a serious effect on the employer’s business it may be appropriate to move directly to a final written warning. The warning should give details of, and grounds for, the complaint. It should warn the employee that a failure to improve or modify behaviour might lead to dismissal or to some other penalty, and refer to the right of appeal. The warning should normally be disregarded for disciplinary totting up purposes after a specified period – the Code suggests 12 months.
- Dismissal may be appropriate if the employee’s conduct or performance still fails to improve. In cases of gross misconduct, an employer may decide to dismiss even though the worker has not received any previous warning for misconduct. A decision to dismiss should be taken only by the appropriate designated manager. The employee should be informed as soon as possible of the reasons for the dismissal, the date on which the employment contract will terminate, the appropriate period of notice and their right of appeal.
- Another penalty such as disciplinary transfer, demotion or loss of pay might be appropriate, but will be lawful only if the employee’s employment contract allows for it.
Whichever sanction is chosen, the employer should notify the employee of it as soon as possible after the disciplinary hearing, and then confirm the situation in writing and notify the employee of his or her right to appeal. Model letters confirming written warnings are included elsewhere in this Guide ( specimen documents ) .
After completing a reasonable investigation, a company may have reasonable grounds for believing that any one of a particular group of employees may have committed the act of misconduct. However, it may be unable to identify the particular individual who did so. In these circumstances, it may be reasonable for the company to discipline or dismiss all of the employees.
If a company is considering this course of action, it should contact its Association for advice.