Absence Management

Overview

Whether a member of staff is unwell, has family/caring commitments or is pulling a “sickie” due to a hangover after the world cup, unplanned absences can be an expensive and a disruptive problem for businesses and even authorised absences can be difficult without effective planning and tracking, especially for SMBs operating at capacity.

Of course, there will always be times when staff members are genuinely unable to attend work and businesses accept that sickness and everyday life challenges will inevitably arise for their employees at some point.

However, how can a business identify whether their absenteeism levels are within a reasonable threshold for their size of business and sector?

What strategies can be put into place to both minimise workplace absenteeism and manage the sickness absence process to best effect?

Statistics

Statistics show that UK employees call in sick more than 6 days every year, resulting in 131 million days lost through absences due to sickness or injury.

Employee absence can have a significant impact on a business' productivity, profitability and ability to engage its workforce and yet its cost and impact often remains an afterthought.

However, with UK unemployment at a record low and employers facing the challenges of a competitive labour market and the uncertainty of Brexit making job applications within the UK less appealing for EU citizens - absence management requires careful consideration.

The balance of power between employers and employees is changing and within this context there is even more reason to prioritise your organisation's approach to absence management policies and procedures.

We hope these resources will help you to consider how you manage absence within your business.

Managing Short-Term Absence

Most of us get ill or injured occasionally and workplace absence can never be eliminated. However, controlling absence in a consistent and fair way will not only save you money and improve productivity, it will also create a happier working environment.

The length of time you, as the employer, define as 'short-term' is for you to decide, but generally refers to absences of less than two or three weeks. From most people, short-term absence is occasional and of limited duration and impact. It has the positive benefit of helping to prevent the spread of viruses and bacterial infections and allows people to recover from minor injuries safely and more quickly. Not all health-related absences are for sickness of course. Some people need to take time of for medical appointments, including minor operations and recuperation, or for family emergencies.

Sometimes, lengths of absence or the number of times an individual employee is absent may accumulate to a point where you are concerned about both their possible health issues and the impact on their work. It is important to have an accepted framework in place that enables you to discuss this issue in a matter of fact way, so you can both find a way to improve their attendance. This is also how you may find out about any underlying health conditions and are able to consider making reasonable adjustment to support the employee.

Return to Work or Welfare Meeting

The meeting is an informal one between an employee and their line manager. It's an opportunity to ensure that the employee is recovered from injury or sickness, or that any other issue that has kept them from work is resolved.

You can download template letters to invite an employee to a return to work meeting in the Hub.

In the meeting you should:

• Check that the employee is fully recovered or discuss any short-term restrictions on their duties.
• Update your employee with anything that has happened in their absence.
• If there have been several absences it's an opportunity to identify any longer term, underlying problems that are affecting their attendance.
• Is the reason for absence likely to recur?
• Do they need any other support?

Trigger Points and Absence Reviews

Lots of organisations use a framework of 'trigger points' to help them manage absence fairly and effectively. There are several different systems, but in essence you set out in your policy a 'limit' to the number of absences or days of absence an employee may have before they are invited to a meeting to discuss and consider if there is any underlying problem impacting their attendance. Typical limits would be 3 periods of absence in a rolling year (i.e. the employee has been absent on three occasions in the last 12 months looking back from today's date) or 5 days' absence in total in a three-month period.

An absence review meeting is not a formal meeting, but it should be separate from a Return to Work meeting, which is focussed on the employee's current recovery and smoothing the transition back to full efficiency. If your absence policy mirrors your disciplinary policy, you can consider the absence review as broadly equivalent to an investigation meeting. You do not need to give your employee notice or the right to be accompanied, but you might want to consider doing this if you think it will help things run smoothly. Both of you should be prepared to discuss the full set of absences that have led to the meeting. Your objective is to make sure your employee understands the reason for the review and its place in the policy, and to find out from the employee if there is some underlying issue causing repeated absences. Afterwards you will need to consider whether any further action is necessary.

Short-Term Absence and Disability

Not every employee with a disability struggles to attend, and not everyone struggling to attend regularly has a disability, but some employees may have long-term underlying health conditions that make it difficult or even impossible to avoid regular short-term absences.

If this condition is something that has lasted, or is likely to last, more than twelve months and has an impact on their day to day activities, their condition is likely to be regarded as a disability for the purposes of the Equality Act 2010.

The significance of this is that the Act imposes on the employer a duty to make 'reasonable adjustments' to level the playing field. In terms of absence management, a reasonable adjustment could be ignoring some or all absences related to an established condition when calculating absence triggers. Likewise, for employees working shifts, you may want to discuss whether working at different times of day helps them to manage medication or hospital appointments. You should take advice on managing absence-related reasonable adjustments as each case will be very different.

Managing Long-Term Absence

Most of us get ill or injured occasionally and workplace absence can never be eliminated. However, controlling absence in a consistent and fair way will not only save you money and improve productivity, it will also create a happier working environment.

Inevitably some absences can extend for long periods of time. Whilst your first concern may be the impact the absence is having on your business you also have a duty of care to protect your employee's welfare. The longer the employee is absent the harder it is for them to return and long periods of absence could lead to a further decline in their health. Your primary focus should be to the provide support to the employee and explore options to maintain their employment.

There is no official definition of what period is considered to be long-term sickness. However, we recommend that when absences reach four weeks this should be a prompt for you to get in touch with them to discuss their welfare.

Return to Work or Welfare Meeting

The meeting is an informal one between an employee and their line manager. It's an opportunity to ensure that the employee is recovered from injury or sickness, or that any other issue that has kept them from work is resolved.

You can download template letters within the HR Hub to invite an employee to a return to work meeting.

In the meeting you should:

• Check that the employee is fully recovered or discuss any short-term restrictions on their duties.
• Update your employee with anything that has happened in their absence.
• If there have been several absences it's an opportunity to identify any longer term, underlying problems that are affecting their attendance.
• Is the reason for absence likely to recur?
• Do they need any other support?

Trigger Points and Absence Reviews

Lots of organisations use a framework of 'trigger points' to help them manage absence fairly and effectively. There are several different systems, but in essence you set out in your policy a 'limit' to the number of absences or days of absence an employee may have before they are invited to a meeting to discuss and consider if there is any underlying problem impacting their attendance. Typical limits would be 3 periods of absence in a rolling year (i.e. the employee has been absent on three occasions in the last 12 months looking back from today's date) or 5 days' absence in total in a three-month period.

An absence review meeting is not a formal meeting, but it should be separate from a Return to Work meeting, which is focussed on the employee's current recovery and smoothing the transition back to full efficiency. If your absence policy mirrors your disciplinary policy, you can consider the absence review as broadly equivalent to an investigation meeting. You do not need to give your employee notice or the right to be accompanied, but you might want to consider doing this if you think it will help things run smoothly. Both of you should be prepared to discuss the full set of absences that have led to the meeting. Your objective is to make sure your employee understands the reason for the review and its place in the policy, and to find out from the employee if there is some underlying issue causing repeated absences. Afterwards you will need to consider whether any further action is necessary.

Medical Capability Process

This is a formal procedure primarily to manage employees who are absent from work due to long term sickness. The first step in this process is to gain permission from the employee to seek more information regarding their health or condition. This can be via a professional medical report or an occupational health assessment. A record of historic short-term absences might form part of the information you consider in a medical capability process, but it's primarily a way to manage long term absences.

Long-Term Absence and Disability

It is important to understand more about the health of someone with repeated absences for an underlying condition or open-ended long-term sickness. Doing so will help to determine whether an employee's condition is likely to be regarded as a disability for the purposes of the Equality Act 2010. The significance of this is that the Act imposes on the employer a duty to make 'reasonable adjustments' to level the playing field. Whether an employee is disabled will determine the appropriateness of how absence is managed.

Your employee will have to agree to you approaching their GP, specialist or an occupational health advisor to obtain a report, and they have the right to see any report before you do, if it's their preference. If they are reluctant, remember it is ultimately their decision, but you should explain to them that without the benefit of input from someone who understand their medical condition, you will have to try and make decisions, including decisions about their ongoing employment, without useful medical information. You find relevant template letters within the HR Hub that will help with this process.

You will not have access to their entire medical history, but rather to a report detailing their condition and the prognosis for recovery. An Occupational Health Advisor will give you more detailed information about how your employee's condition impacts on their attendance and work.

You can find out more about referring someone to Occupational Health with Moorepay here.

Proactive Absence Management Strategies

AWOL

If you have set clear expectations of how to report absence then it will be routine for people to follow the process; therefore, if somebody fails to turn up for work when expected and you have not heard from them, it is likely to cause some alarm. The first step of course is to try phoning them. If you can't reach them, you will need to consider other options such as emergency contacts. If the absence is following a period of annual leave, particularly if they have travelled abroad, then delays are a likely explanation. Being absent without leave is a potential misconduct issue, but it is important not to jump to conclusions since the matter would be subject to your normal investigation processes. Be careful not to vent your frustrations when leaving messages or voicemails. At this stage you don't know what is going on, and you may regret assuming anything.

If someone persistently fails to notify absence, then this may be a disciplinary issue. An initial investigation will give you the opportunity to understand what the problem may be.

Non-genuine absence

If you have grounds to believe that an employee is reporting sickness or other absence but that they are not genuinely ill or absent for the reason given, then you will need to treat this as a disciplinary investigation.

Before you go ahead however, it is worth considering a couple of points. While you have every right, and indeed responsibility to tackle dishonesty in the workplace, accusing someone of lying about being sick is likely to be highly damaging to the work relationship.

Just because someone is off sick, this does not mean they are confined to bed, or even to the house. Being seen out doing the shopping is not an indication that your employee is fit for work. Absence with mental health issues may involve a recommendation from a medical practitioner to get out of the home and engage in social meetings.

Unless presented with a crude and obvious forgery, we don't advise you to challenge the genuineness of a doctor's fit note. Even if you suspect that your employee has exaggerated or invented symptoms to be signed off sick or extend a period of sickness, this amounts to challenging a doctor's professional opinion, and this will not take you very far.

Possible actions are:

No further action – either the absences are unconnected, and it's just been an unfortunate coincidence for an employee whose attendance is normally good, or perhaps the absence or absences are connected to a health issue that has been remedied with treatment or surgical procedure and is unlikely to recur.

Referral to occupational health where you and the employee recognise an underlying condition that requires further investigation about its impact on work

Reasonable adjustments – if your employee has a condition that may amount to the legal definition of a disability, you have an obligation to make any adjustments that are reasonably achievable to help your employee manage work. An example of a reasonable adjustment would be a change to shift or break times to help with managing the effects of medication. You are entitled to ask for a doctor's note about an employee's condition if necessary. See the section on Short term absence and disability for more information.

Formal absence disciplinary meeting – sometimes managers set up absence disciplinary meetings after an informal review as a matter of course, considering the triggering of a certain number of absences to be the defining factor. This is unwise. It's easy to miss things and can lead to situations where you accelerate through a series of warnings until you are faced with a fatally damaged relationship or potentially dismissing someone unfairly. Remember that it's not your employee's fault that they have been ill, and that punishment or the threat of punishment is unlikely to assist in your over-arching objective of improving their attendance. Any formal meeting should be convened after careful thought and conducted sympathetically. If you truly think your employee is 'swinging the lead' then read our section on non-genuine absence and talk it through with our Advice Service.

Persistent Absence and the Disciplinary Policy

If someone is unable to attend work regularly enough to fulfil their obligations as your employee, it may be lawfully fair – eventually - to dismiss them. You should always take advice on a situation like this because it is important to look at underlying reasons and other solutions first. Failure to do this may lead to not only an unfair dismissal situation but also may be unlawful discrimination on grounds of disability.

As with a conduct or capability issue, you will need to demonstrate that you have given the employee fair warning and an opportunity to improve. Use the framework of your disciplinary policy in terms of written and final written warnings, but with two critical differences. Firstly, keep uppermost in your mind that this is not about 'fault'. You cannot order someone to improve their health – although discussion about professional medical help and self-help will be central to your discussions. Secondly, do not merge formal absence warnings with any misconduct or general capability issues.

Examples:

Employee A has a written warning for his part in an argument at work that got a bit out of hand. Separately, he has had several short absences for colds and viral infections that means he has exceeded the trigger for an absence review on two or three occasions. There is no suggestion that his sickness is not genuine, or that he is not doing what he can to stay well and minimise his absence from work. However, it's causing real problems on his shift. You decide the time has come to hold a formal meeting and potentially issue a warning. Any warning you do issue will be the lowest level. You can't issue a final warning on the basis that there is a live written warning on file. The two processes will run in parallel.

Employee B has had multiple attendance issues stretching back over a year. Despite everything you have both done, she is now on a final written warning for absence. Outside of this she has started to often turn up late for work, usually saying its heavy traffic. Several informal warnings about this have had no effect. You investigate it further and there's no indication it is related to her health in any way. Following your regular conduct policy and normal treatment of persistent lateness you decide a formal hearing is necessary and ask another manager to take it forward. Unless advised otherwise because of specific circumstances, there is not an option to fairly dismiss at this stage based on the final warning for absence.

Maternity

Overview

Maternity rights require employers/organisations to handle a number of processes before, during and after pregnancy. It is a complicated area of employment law/HR because of the various obligations that arises. Careful handling of the expecting mother's (and fathers') rights and entitlement are required to be taken throughout her pregnancy to avoid discrimination and unfair treatment. In the present Covid-19 pandemic employers must also be careful that they do not discriminate. The main areas of law are covered under the Maternity and Parental Leave Regulations 1999, The Employment Rights Act 1996, The Equality Act 2010.

What is maternity Leave?

In short, it is a period of leave where a pregnant woman (and father), takes time off to care for their newly born baby. It is spilt into two 26-week parts, often referred to as Ordinary Maternity Leave (OML) and Additional Maternity Leave (AML).

Ordinary maternity leave can start at any time after the beginning of the 11^th week before the Expected Week of Childbirth (EWC), unless the child is born prematurely before that date, in which case it will start earlier.

Who is entitled to maternity leave?

All pregnant employees, regardless of length of service or hours of work are entitled to take up to 52 weeks maternity leave. The pregnant employee does not have to take the full 52 weeks, but she must take at least 2 weeks off work following the birth of her baby.

Are they entitled to be paid during maternity leave?

The pregnant employee will be entitled to statutory maternity payment as a minimum, if, she is earning at least the lower limit for NI contributions. The amount will be different depending on the employee's hours and number of weeks on maternity (visit gov.uk for more information). Do check your employee's contract of employment as this may state a more generous entitlement.

Can a pregnant employee go on maternity leave without informing her employer?

An employee must notify you of her pregnancy. When you are notified do request that it is put in writing giving the date the baby is due and the date, they intend to start their maternity leave. Once in receipt you are required to write to the employee confirming the date that the maternity leave will start and the date in which it would end.

Maternity Pay

Statutory Maternity Pay (SMP)

SMP payments are made irrespective of whether the employee intends to return to work. SMP is payable for a maximum of 39 weeks and is subject to deductions for Income Tax and National Insurance. The first 6 weeks are paid at 90% of the employee's average gross weekly earnings which are calculated over the 8-week period prior to the qualifying week. The following 33 weeks are paid at the lower rate SMP which is set annually by the government.

Maternity Allowance

Employees who are not entitled to SMP may be entitled to receive maternity allowance payable by the government.

Rights Before, During & After Maternity

Rights Before Maternity

Confirmation of Maternity Leave Start Date

Within 28 days of receiving the written notification regarding maternity leave, you are required to write to the employee confirming the date that the maternity leave will start (as notified by the employee) and the date on which her statutory maternity leave will end. Visit the HR Hub to download confirmation of maternity leave template letter.

Employee responsibilities

Employees are required to provide you with a Certificate, which they will receive from their Midwife or GP confirming the expected week of childbirth. This form must have either the doctor's name and address or the midwife's name and registration number on it.

Ante Natal Care

Irrespective of her length of service, a pregnant employee is entitled to reasonable time off with pay during normal working hours to receive ante natal care (e.g. for scans or checks). You can ask the employee to provide evidence of pregnancy and produce an appointment card to verify the ante natal appointments (apart from for the first antenatal appointment). Fathers and partners now have the right to take unpaid time off work to accompany expectant mothers to up to 2 antenatal appointments.

Rights During Maternity

Reasonable Contact

Shortly before an employee's maternity leave starts, you should discuss the arrangements for the employee to keep in touch during her leave, should she wish to do so. This may be to discuss the employee's plans for return to work, to discuss any special arrangements to be made or training to be given to ease her return to work or simply to update her on developments at work during her absence.

Keeping in Touch (KIT) Days

A pregnant employee on maternity leave can go in to work for up to 10 “keeping in touch days” without losing her Statutory Maternity Pay for any week where she attends work.

As an employer, you have no right to require employees to carry out any work, and employees do not have a right to undertake any work, during their maternity leave. Any work undertaken, including the amount of salary paid is entirely a matter for agreement between you and the employee.

Rights after Maternity

Breastfeeding Facilities

You are required to provide suitable facilities for breastfeeding mothers who wish to express and store breast milk during the working day. A risk assessment must then be carried out by the manager to decide if the employees working conditions pose any risk to them or their baby.

Notice of Return

There is a compulsory period of maternity leave that all employees must take. This compulsory period is 2 weeks after the birth in a factory setting the period is more.

Flexible Working

An employee who worked full-time prior to their maternity leave has no automatic right to return to work on a part-time basis or to make other changes to their working pattern. However, you need to consider all requests for part-time work. See Flexible Working.

Transferring Maternity & Shared Parental Leave

An employee may propose to return to work without using their full 52-week entitlement to maternity leave. An employee may be eligible to transfer their remaining maternity leave. This includes entitlement to eligible statutory maternity pay. The employee must give written notification at least 8 weeks before the date they wish the leave to commence. This facility applies to the employees' spouse, civil partner or partner, or the father of the child. (Shared Parental Leave provision).

Maternity Rights & Discrimination

The Equality Act 2010prohibits pregnancy and maternity discrimination.

Changes to Employee Contract

Employees are entitled to all contractual entitlements such as, retention of a Company Car or Car Allowance, accrual of holidays and must return to her same job. Any changes you make to the contract of an employee during maternity leave without the employee's written consent may be deemed discriminatory/unfair.

Adoption Leave

What is Adoption Leave?

In short, it is a period of leave where the adoptive parents/couple, take time off to care and bond with their newly adopted child/children. The pay and entitlement are similar to birth parents. Adoption leave is spilt into two 26-week parts, following on immediately after each other. The two parts are known as Ordinary Adoption Leave and Additional Adoption leave.

Who is Entitled?

Employees who have been notified by the Adoption Agency that they have been successful in adopting a child are entitled to adoption leave provided they fulfilled certain criteria.

Notification of Adoption

Once an employee advises you that they have been successfully matched with a child for adoption, ask them to confirm in writing the date they intend the adoption leave to start and ask them to provide a copy of the matching certificate from the adoption agency. Notification must be within 7 days of the date on which the employee is formally notified by the adoption agency and a copy of the matching certificate must be received at least 28 days before the adoption leave and pay is due to start.

Confirmation of Adoption Leave Start Date

Within 28 days of receiving the written notification regarding adoption leave, you are required to write to the employee confirming the date that the adoption leave will start and the date on which the employee is expected to return to work if they take their full 52 week entitlement. Visit the HR Hub to download Adoption template letters.

Adoption Leave Rights

Employees are entitled to all contractual entitlements, such as retention of a Company Car or Car Allowance, accrual of holidays.

Entitlements when Returning to Work

An employee is entitled to return to work following Adoption Leave without giving any prior notice as they will be returning to work on the date notified by the employer. The employee is entitled to return to the same job they occupied before commencing adoption leave on the same terms and conditions of employment, as if they had not been absent.

Flexible Working

An employee who worked full-time prior to their adoption leave has no automatic right to return to work on a part-time basis or to make other changes to their working pattern. However, you need to consider all requests for part-time work (Employee handbook Flexible Working section).

Transferring Adoption & Shared Parental Leave

Where your employee is adopting jointly and is notified of a match for adoption, he or she may also be entitled to shared parental leave and pay.

Special circumstances

If an employee is unable to return to work at the end of the Adoption Leave Period due to illness, the normal company sickness scheme and reporting rules will apply.

Adoption leave pay

Statutory Adoption Pay (SAP) is payable to eligible employees during the period 39 weeks following the placement, although this can commence up to 2 weeks prior to the placement. If the employee qualifies, then the whole 39 weeksis paid at the same rate as maternity pay visit thegovernment websitefor current rates.

Workplace Grievances

Working with others inevitable leads to misunderstanding or disagreements from time to time. It is therefore necessary to have a grievance procedure in place where employees can inform their Managers or the business of issues arising from their employment. The right to pursue a grievance is considered to be best practice and ought to be written into the contract of employment or handbook. Where this is not the case the employer is expected to follow the ACAS code on handling grievance. Whilst the code is not legally binding, failure to follow it could result in increased compensation being awarded in the event of an employee succeeding at an employment tribunal.

What is a grievance?

A grievance put simply is where an employee raises any complaint, concern or problem to do with their employment. It could be about anything such as, how they are being treated, pay, promotion, working conditions. It can be raised at any time during and after employment.

How is a grievance raised?

Informal

Most grievances may start out by the employee approaching his or her Manager complaining about a problem, colleague or something else. Try and not see the raising of a grievance as a problem, but as an opportunity to address a colleague's concern. If the employee turns out to be right, it would have identified a gap in your process or way of working which you can correct. There are some grievances that cannot be resolved informal, such as discrimination or bullying, and should be dealt with under your formal grievance procedure.

Formal

Where the matter was not resolved to the satisfaction of the employee or of a serious nature, such as discrimination, the grievance should be put in writing or in the form of a statement. If this is so, simply inform the employee that for the matter to be progressed it is required to be in writing. There are some situations where the employee may not want to put his/her concerns in writing, such as sexual harassment, notwithstanding this, it should be dealt with without insisting that it is put in writing. The written grievance should set out what the issues are and those involved (if any). Unless otherwise stated, such as, in the Employee Handbook, the written grievance should go to the employee's Line Manager. If the complaint is about the employee's Line Manager, the statement should go to the Line Manger's Line Manager.

Right to be accompanied

Where a formal meeting is to take place, such as grievance or disciplinary, it is alegal requirementthat employees be given the right to be accompanied. A companion can be a work colleague or an official trade union representative (the employee does not have to belong to that union). Do check the employment contract or handbook, if it says something else go with whatever it says. The employee may request a member of their family or a Solicitor, this is generally not encouraged. A companion who is not a work colleague or trade union representative, may be considered where the employee has learning difficulties or serve physical/mental disability. If the complainant's companion of choice is not available to attend on the date specified, the hearing can be postponed for up to 5 days.

What is the role of the companion?

The companion is mainly there as a support to the employee, but they can present the employee's case (do an opening) and sum up (close the employee's case). They can confer with the employee during the hearing and seek a short adjournment to confer privately. The companion cannot answer any questions put to the employee. If the companion is disruptive, he/she should be reminded of their role. If they persist, you can end the meeting and report the representative to his/her organisation and request that someone else attend. If it is a work colleague inform the complainant that they would have to choose another companion. If they refuse, you can go ahead with the hearing without his/her companion. Care must be taken to not treat the companion any different to other colleagues because they have elected or supported a complainant.

Meeting with the Complainant

Many grievances can be resolved by having an informal discussion about the matter. Do take the time to listen and provide an explanation. If the matter raised can't be resolved immediately do let the employee know when you are likely to get back to them. Whether the matter was resolved to the satisfaction of the employee or not do write to the employee summarising what was discussed, the outcome and reminding them of the next stage, if any.

If the matter was not resolved informally or the grievance is of a serious or formal nature, the employee should be written to without delayinviting to a grievance meeting. The employee should be informed of the person hearing the grievance, date, time and place. The format of the meeting can be that of the employer going through the issues raised and asking the employee to respond or elaborate. Alternatively, the employee can merely read out or take the employer to specific points in the grievance letter and comment or elaborate on.

It is important that the employer takes a neutral approach and does not show any bias or hurry up the process. Once the employee has finished reading or commenting on their statement/written grievance, the employer can put questions to them which were not asked earlier. If there are no further questions the employer should ask the employee if there are any further questions or matters, they wish to raise. If no further questions, thank the employee for attending and informed that an outcome will be provided in written within 7 days of the date of the meeting taking place. Do check the handbook or contract of employment which may specify a different date, if so, go with the contract/handbook. NB: It is ok to extend this date, if your enquiries are taking longer, but do let the employee know in writing.

After the meeting - The Investigation

Review what the employee had said during the meeting and carry out any investigation into the issues raised. Do not assume you know the answers or about the circumstances raised, check with any person named or make enquiries into the circumstances highlighted by the employee. During your investigation, you should obtain statements or make notes of those you have spoken to. Always good practice to get them to sign the statement or your notes. If you looked at e-mails or other correspondence/records do let the complaint have sight of them and asked for his/her response to them before coming to a decision. Once you are in receipt of their response to your initial investigation, you can provide them with your outcome.

Written Confirmation

The outcome to the grievance must be in writing addressing each point they have raised with a summary of your finding and why you have come to the conclusion you have reached. You must give them the right to appeal with a specific date by which they must respond by and who the appeal is to be addressed too (visitthe HR Hub to download Grievance template letters).The minutes/notes and any statement or documents relied on should be forwarded to the complainant.

Right to Appeal

Whether the outcome is positive, negative or a combination of the two, the employee should be given a right of appeal. The appeal should be in writing specifying the reasons/grounds for the appeal. The purpose of the appeal is for a new person to review whether a fair process was followed, and the decision arrived at was reasonable and fair. In addition, the appeal gives an opportunity for new information/evidence to be considered which was available at the original meeting and which may affect fairness or otherwise of that decision.

The Person hearing the Appeal

The appeal should be heard by a senior person and one who has not been involved in the previous handling of the grievance or implicated. As with the original grievance hearing, the employee's letter of appeal should be acknowledged and a date, time, place and the person hearing the appeal should be mentioned. The person appealing must be given the right to be accompanied (Right to be accompanied above)

Hearing the appeal

The appeal officer will listen to the reasons/grounds of appeal, adopting a similar questioning or listening style as outlined in the section, “Meeting with the complainant” (see above). The complainant must be provided with a written outcome and notified that the decision is final.

Disciplinary Procedures

From an employee never quite making it to work on time or always leaving a few minutes early; to social media misconduct, when an employee posts derogatory remarks about an employer – there are many types of issues that can jeopardise the employment relationship. Disciplinary and grievances procedures exist to ensure that these challenges are dealt with fairly and consistently.

With more and more employees working remotely or on a hybrid basis following the COVID-19 pandemic it can be more difficult to notice problems arising. Never has it been more important to ensure communication is open and frequent and employees know what is expected of them.

What is a disciplinary procedure?

A disciplinary procedure is a clear process enabling employers to address issues of misconduct or performance. It provides a framework to ensure there is consistency of treatment, yet also allows for personal and mitigating circumstances to be raised and addressed.

Issues can be raised informally before going straight to formal disciplinary action or dismissal procedures and in many cases, a quiet word may be all it takes. However, where normal management techniques aren't successful, you need to have formal mechanisms in place to begin a disciplinary process. Both procedures and any action you take should be consistent.

Both legislation and case law impose a duty on employers to make sure employees are not unfairly treated. In addition, Acashas created a Code of Practice which sets out processes that should be followed when taking disciplinary actions against employees. Failure to follow the Code could result in a larger award being made in an employment tribunal.

A disciplinary procedure allows you to:

• Inform an employee that their behaviour is unacceptable or inappropriate
• Resolve concerns constructively and encourage improvement
• Follow a fair process and be in the best position to successful defend any unfair dismissal claim.

How should you conduct disciplinary procedures with employees to ensure they are fair?

You must put your disciplinary procedures in writing and make it accessible to all staff. It should include the rules, indicate what performance and behaviour may lead to disciplinary action, and what action may be taken.

By law, the following steps must be included in your disciplinary procedure – these are known as the statutory minimum procedures.

• a letter setting out the reasons or reasons why you are considering disciplinary action
• a meeting to discuss the issue
• a disciplinary decision
• a chance to appeal this decision

If you dismiss an employee without following this process, then in the event of an unfair dismissal claim, the dismissal will normally be 'automatically unfair.' An employee will usually need at least two years' service to be able to make an unfair dismissal claim.

In unfair dismissal claims, employment tribunals take the 'ACAS code of practice on disciplinary and grievance procedures' into account where relevant and may increase an employee's compensation award by up to 25% where you unreasonably fail to follow the code.

Disciplinary procedures in your employment contract

An employer can set out their disciplinary procedures in their employment contracts, however these must meet the statutory minimum disciplinary procedures. An employee could sue for breach of employment contract if these procedures have not been followed.

Employers should follow both their own procedures and the AcasCode of Practice: Disciplinary and Grievance Procedures.

This guidance outlines how to manage disciplinary processes, highlighting key considerations for employers and steps for taking formal disciplinary action.

Understanding the options

Misconduct

Misconduct is one of the main reasons why you would need to take an employee through a disciplinary process. Misconduct is when an employee commits an act which amounts to unacceptable or improper behaviour and therefore breaks the workplace rules.

As stated above, some examples of misconduct are:

• Lateness (failing to adhere to timekeeping)
• Unauthorised absences
• Failure to hit targets
• Insubordination
• Bullying

These examples would normally be covered in your employee handbook, alongside additional examples. Once the alleged misconduct has been identified, you will need to ensure that you follow through with the correct disciplinary procedure, to avoid any risks of an unfair dismissal claim.

Gross Misconduct

One of the most difficult areas of employment law is understanding what gross misconduct looks like for every industry. What is acceptable in a warehouse, would not be acceptable in an office. What is acceptable in one office might not be acceptable in another. Accessing records in an office would ordinarily be a misconduct issue, accessing records in a GP practice would automatically amount to a gross misconduct offence. Making sure you determine if the conduct amounts to gross misconduct at the beginning of a disciplinary process is one of the most important things you can do to avoid an unfair dismissal claim.

Once you have determined if the conduct is gross misconduct, there are several separate factors which will need to be considered, which are only applicable to a gross misconduct dismissal. A gross misconduct dismissal could ultimately signal the end of an employee's career in their chosen sector, such as a doctor found to have abused patients or an accountant guilty of money laundering. Unlike a misconduct disciplinary process, following through with gross misconduct allegations would result in the termination of employment and an employee being unable to practice in their chosen field again. You must therefore make sure that the entire process is run correctly, to minimise any risks of a claim being brought against your company.

Suspension

Before you do anything, you need to decide if the employee should be suspended pending an investigation. Suspension is when an employee temporarily stops carrying out work. You can consider suspension whilst carrying out a disciplinary or grievance investigation if there's a serious issue or situation.

An employer should consider each situation carefully before deciding whether to suspend someone. Suspension will only be needed in some situations and should not be a knee-jerk reaction.

Suspension does not mean an employee has done anything wrong and should not be used to discipline someone. Before you do decide if an employee should be suspended, the following factors need to be considered:

• Change shifts
• Work in a different part of the organisation
• Work from home
• Work from a different office or site
• Stop doing part of their job – for example stop handling stock if you're investigating a large amount of stock going missing
• Work with different customers or away from customers – for example if you're investigating a serious complaint from a customer
• Stop using a specific system or tool – for example removing access to the organisation's finance system if you're investigating a large amount of missing money

Once the decision to suspend has been made, you need to move on to allegations of gross misconduct. It is helpful to know what an employment tribunal would consider if a claim for unfair dismissal is brought, to understand how the procedure should be dealt with.

The employment tribunal will take various factors into account, including:

• Was the matter properly investigated and was the disciplinary meeting chaired by an impartial person?
• Was the disciplinary meeting held where you allowed the employee to state their case?
• Was the employee given sufficient notice of the meeting and given notice of their right to be accompanied by a work colleague or a trade union official?
• Was the employee provided with supporting documents and/or witness statements in advance of the meeting?
• Did you have a genuine belief in the employee's guilt and was this belief reasonable?
• Did you allow the employee to have an adequate opportunity to state their case?
• Did you allow the employee the opportunity to appeal the decision?
• Did you follow any policies?
• Have you consistently applied the penalty with similar offences in the past?

Each of these matters need to be considered in enough depth to be able to defend a potential tribunal claim.

Avoiding discrimination

In an ideal world once you have started a disciplinary, the process itself should be a relatively straightforward procedure. However, you could encounter curveballs along the way.

Sickness

Disciplinaries are stressful in nature, so do not be surprised if an employee suddenly calls in sick once you have instigated the process. After a few days of sickness, you could receive a sicknote which states that the disciplinary is either causing the employee considerable stress or exacerbated an on-going medical condition. If an employee states that they are unable to proceed with the disciplinary, you might have to consider putting adjustments in place i.e., disciplinary hearings by video call (see Managing a Disciplinary Remotely) or written submissions instead of in person meeting.

Alternatively, an employee could provide a medical explanation for their misconduct, even if they have never disclosed their medical history before. If this happens you will need to consider the medical condition's impact on the employee, whether it can explain the employee's actions and if a medical capability process needs to be conducted instead. If you fail to take a medical condition into account during a disciplinary process, you could find yourself on the receiving end of a disability discrimination claim. Not only could this render any potential warning or dismissal unfair, but it could also allow an employee to ask for additional awards in a tribunal hearing.

Grievance

Disciplinaries can sometimes feel like a personal attack on an employee, which is why it is very common to receive a grievance during the process. You need to be mindful of how you handle them, dealt with correctly and they could help with the disciplinary process, dealt with incorrectly and you could aggravate the entire process.

If the concerns raised are independent to the disciplinary, then the grievance and disciplinary can be dealt with simultaneously. However, if the grievance is in response to the disciplinary procedure, it will need to be dealt with before any further action can be taken. Unfortunately, this can cause considerable delays to the disciplinary process as you may need to investigate, interview witnesses, and collate information to provide a grievance outcome. It is important to remember that the decision to progress with the disciplinary or wait until the grievance has been processed will need to be dealt with on a case-by-case basis.

Discrimination

Either through a grievance, or separately, an employee could raise complaints of discrimination. They could allege that they are being treated differently to their colleagues because of one of the protected characteristics listed under the Equality Act 2010. If found to be true, this could give rise to a discrimination claim being brought against you or your company.

As stated above, any award issued by the Tribunal for unfair dismissal, is capped. Discrimination awards on the other hand are uncapped and could run into the hundreds of thousands. It is therefore imperative that if an employee starts referencing discriminatory treatment, you contact Moorepay's advice line as soon as possible, so we can help you mitigate any risks to yourself and your company.

Deciding the disciplinary outcome

Once you have concluded the meeting, you will need to decide the appropriate disciplinary sanction to be imposed by considering how serious the offence is, what action it merits and any of the following steps which could be taken to improve the situation:

• Any findings from your investigations,
• Allegations put forward in the disciplinary,
• Explanations provided by the employee during the disciplinary,
• Any mitigatory factors (length of service, previous record, or medical conditions)
• Any precedent cases where similar conduct has previously occurred with another employee and the decision you made in that case.

The disciplinary outcome can range from a letter of concern to summary dismissal.

Contact Moorepay's advice line for further support if needed.

Dismissals

A dismissal is when the entire process has been followed and an employee's contract is ended. It usually means the same as being sacked or fired.

It is important that you use a fair and reasonable procedure to decide whether to dismiss someone.

The disciplinary outcome letter should set out the following:

• Outline the misconduct committed by the employee and the consequences if similar instances happen in the future
• An improvement plan (if appropriate) and a timeframe of when this will be reviewed
• The sanction being imposed and, if appropriate, how long it will last
• Confirmation of the employee's express right to appeal
• The deadline for appealing against the decision
• The process for bringing an appeal.

Contact Moorepay's advice line for further support if needed.