It is essential to the fair handling of discipline that employees are not penalised for conduct or performance that they did not know was unacceptable. This is particularly important where an employee is at risk of being dismissed for alleged gross misconduct. Any rules or standards that a company wishes to enforce should therefore be made clear to all employees, and should preferably be included in any induction training that a new recruit is given. Line managers also need to be familiar with the content of disciplinary rules if they are effectively to fulfil their role in enforcing them.
Under the Employment Rights Act 1996, all employees must be provided with written information about the disciplinary rules and procedures that apply to them, within two months of starting work (supplying the information ). The Act says that these details need not include rules about health and safety. In practice, however, it is advisable for employers to notify employees of all disciplinary rules, including those covering health and safety, in order to fulfil their duty of care under health and safety law and to avoid liability for unfair dismissal.
Under the Act, an employee need not be given an individual copy of the rules and procedures. He or she can be referred to some other document that is reasonably accessible, such as a set of rules displayed on a noticeboard or kept in the personnel office. In practice, it is preferable to supply each employee with his or her own copy of the rules and get a signed receipt to confirm that this has been done. Where practicable, the employee's manager should talk the employee through them, in order to ensure that the rules are understood.
Special steps may need to be taken to communicate the rules to employees who cannot read or whose first language is not English, and to employees who have a visual impairment or a learning disability. It may be unlawful under the Disability Discrimination Act 1995 to discipline a disabled employee for breach of a rule that was not made clear by making a reasonable adjustment of this kind (duty to make adjustments ).
The content of an employer's disciplinary rules will differ according to the type of business that the company runs, the personnel policies that it has and the circumstances of the particular workplace. According to the ACAS Code, when drawing up disciplinary rules, the aim should be to specify those that are necessary for ensuring a safe and efficient workplace and for maintaining good employment relations. The Code suggests that disciplinary rules would usually cover issues such as:
- bad behaviour, such as fighting or drunkeness;
- unsatisfactory work performance;
- harassment or victimisation;
- misuse of company facilities (for example, email and internet);
- poor timekeeping;
- unauthorised absences; and
- repeated or serious failure to follow instructions.
The Code suggests that when a company is drawing up or revising disciplinary rules, it would be good practice to involve employees, and where appropriate their representatives, so that everyone affected by them understands them.
From a legal perspective, it would be advisable for disciplinary rules to specify that discriminating on the ground of race, sex, age, disability, religion or sexual orientation, including harassment on any of those grounds, amounts to misconduct and may, according to the circumstances, be viewed as gross misconduct. An employer can avoid liability for the discriminatory acts of its employees if it can prove it took such steps as were reasonably practicable to prevent the discrimination occurring (avoiding liability for discrimination). A company will have difficulty in establishing this defence if it has not adopted and enforced disciplinary rules on discrimination and harassment.
It is also highly advisable from a legal perspective for employers to adopt comprehensive health and safety rules. A company is under a legal duty to take reasonable care for the health and safety of its employees, which includes maintaining a safe system of work. Adopting and enforcing rules on safe working practices are an integral part of that duty, particularly where the company is operating in a physically hazardous environment.
In order to comply with the Data Protection Act 1998, and in particular the seventh data protection principle that personal data should be kept secure, it would be advisable to make the unauthorised disclosure of personal information a disciplinary offence.
Some employers operate rules on what employees can wear in the workplace, usually for health and safety reasons or to enhance the company's image. These employers need to bear in mind that certain religions also have rules on dress and appearance, and that it would be advisable to accommodate these traditions where practicable, in order to avoid indirect racial or religious discrimination (indirect discrimination). There is a specific provision in the law that makes it unlawful to require a Sikh who wears a turban to wear protective headgear while on a site where building operations or engineering construction is taking place.
Further information on the issue of religious discrimination and dress can be found in the ACAS guidance on the religious discrimination legislation ( Equal opportunities links ). Companies can also obtain advice from their Association.
It is important for disciplinary rules to make clear the likely consequences of breaking them. In particular, the ACAS Code advises that employees should be given a clear indication of the type of conduct, often referred to as gross misconduct, that may lead to summary dismissal (that is, dismissal without notice). The Code suggest the following list of acts that an employer might choose to classify as gross misconduct:
- theft or fraud;
- physical violence or bullying;
- deliberate and serious damage to property;
- serious misuse of an organisation’s property or name;
- deliberately accessing internet sites containing pornographic, offensive or obscene material;
- serious insubordination;
- unlawful discrimination or harassment;
- bringing the organisation into serious disrepute;
- serious incapability at work brought on by alcohol or illegal drugs;
- causing loss, damage or injury through serious negligence;
- a serious breach of health and safety rules;
- a serious breach of confidence.
It is important to bear in mind that the fact that a particular form of misconduct has been described as gross misconduct in a company's disciplinary rules does not mean that it will automatically be fair to dismiss an employee for that conduct. Whether or not a dismissal is fair turns on whether the employer acted reasonably in deciding that dismissal was the appropriate sanction, and that depends on all the surrounding circumstances, not just the content of the disciplinary rules.
Disciplinary rules cannot cover all possible acts of misconduct. The fact that a particular act of misconduct has not been mentioned in the rules does not mean that it can never be reasonable to dismiss an employee for it. This is particularly so if it is obvious by any objective standard that it amounts to misconduct. Nevertheless, it would be advisable for companies to include a statement in their disciplinary rules that the specified acts of misconduct and gross misconduct are intended to illustrate the types of behaviour that may lead to disciplinary action or dismissal rather than being an exhaustive list.
Many developments in a company, from the introduction of new working practices or personnel policies to a reorganisation or relocation, may make it necessary to amend disciplinary rules. Disciplinary rules should therefore be regularly reviewed and updated, to reflect developments in the company, in employment legislation and in accepted standards of good employment practice.
Provided that disciplinary rules are not part of employees' contractual terms, a company can change the rules at its discretion. Nevertheless, employees should be consulted about changes in the rules, or at least clearly notified that changes have been made, since it is likely to be unfair for a company to dismiss an employee for breaching a rule that he or she did not know existed. The ACAS Code advises that amendments to the rules should be introduced only after reasonable notice has been given to all employees and any employee representatives have been consulted.
Under the Employment Rights Act 1996, employees must be notified of any changes in the disciplinary rules at the earliest opportunity, and in any event no later than one month after the change. The Act says that an employee can be referred to some reasonably accessible document for details of the change, rather than being individually notified. In practice, it would be advisable to notify each employee individually, so that, if it becomes necessary to discipline an employee for breaking the new rule, the employee cannot argue that he or she did not know about it.
Once a company has adopted a particular disciplinary rule, it should ensure that it is enforced. A failure to enforce one rule can have a knock-on effect on the authority of the rest of the rules. It may also make it difficult to enforce the rule in the future, since it may be unfair to dismiss an employee for breaking a rule that has previously been disregarded. A company therefore needs to notify its workforce if a particular rule is to be dropped or if the company intends to revert to enforcing a rule that has fallen into disuse.