Disciplinary – Misconduct and Performance Management and Ill health procedures
We can advise you about your rights and employment procedures which may affect you e.g. investigation, suspension, disciplinary for misconduct or poor performance, long-term sickness, and grievance procedures.
If you are an employee with at least two years’ continuous employment, you have unfair dismissal rights. There are certain exceptions to this two year rule and we can advise you if any of those apply to your situation.
Disciplinary – Misconduct and Performance Management
As stated in our Unfair Dismissal page, your employer needs to have a fair reason to dismiss you and must act reasonably.
Acting reasonably will include carrying out an investigation into a disciplinary matter such as misconduct or poor performance, before proceeding to a disciplinary meeting.
Some employers will decide to suspend you during an investigation (particularly where there are allegations of misconduct). Normally, you will be suspended on full pay unless your contract of employment states otherwise.
If it is decided that there is a disciplinary case to answer, you should be notified in writing, with sufficient information about the allegations, evidence and the possible consequences.
Some employers may not use their disciplinary procedure when dealing with poor performance but use a similar procedure called a Capability or Performance Management Procedure.
You will have certain rights in the disciplinary meeting, including being able to set out your defence of the allegations. After the meeting, your employer should inform you in writing whether it is taking disciplinary action against you.
For misconduct or performance issues, your employer should normally provide a first and then a final written warning before proceeding to a dismissal. In performance cases, the warnings may be referred to as Improvement notes. If allegations of misconduct constitute gross misconduct, then termination without any prior warnings or notice of termination may be fair.
Your employer should allow you to appeal any disciplinary action taken against you.
We can provide you with advice during this procedure or advise upon any claims, if your employment is terminated.
If you take sick leave, your employer may instigate a Sickness Absence Policy. Sometimes, this can start after a relatively short period of sickness absence and in other cases, this may only be after a number of months.
The purpose of the procedure is to keep your employer appraised of your condition, prognosis and likely date of return to work. Your employer may require you to attend a medical examination so that it can obtain a report on your condition.
There are usually a number of meetings with you to consult with you about matters related to your ill health and any medical report. It may be that your employer will seek to end your employment after following this process.
We can advise you throughout this process or advise you about any claims which you may have, if your employment is terminated.
Right to be accompanied
You have a right to be accompanied by a fellow worker, a trade union representative or an official employed by a trade union at any meeting where a warning or a dismissal may be the outcome.
If you are facing a disciplinary hearing (particularly if gross misconduct is alleged or you are on a final written warning/improvement note), you may wish to carefully consider whether you proceed with the hearing.
Sometimes, tactically, it can be worth an approach to your employer before a disciplinary hearing to see whether you can part ways under the terms of a settlement agreement, without any dismissal taking place.
In return for settling your potential employment claims against your employer, in the Settlement Agreement, you may receive an agreed reference, a financial settlement and an agreement that neither side will make derogatory comments about the other.
We are experienced in making these approaches to your employer, negotiating a financial package for you and advising upon the terms of a Settlement Agreement.
Our solicitors work across the whole of the Coventry and Warwickshire region including Rugby, Nuneaton, Bedworth, Leamington Spa, Kenilworth, Warwick, Atherstone and Balsall Common as well as further afield.
The above is not intended to provide advice.