19 August 2014

Disciplinary best practice dos and don’ts

Is there a small, tight-knit workforce at your practice?  Do close relationships make difficult conversations with your employees all the more awkward?  Do you find it difficult to find the time to tackle conduct or capability issues? 

Handling a disciplinary issue is never a pleasant experience, even more so when the pressures of your practice mean it takes up valuable time which could be better spent servicing the needs of your patients.

Getting disciplinary procedures right first time requires consideration of best practice and procedure. Trying to tread carefully so as not to upset important working relationships can mean that issues get left unresolved.

Here are some dos and don’ts on key matters to consider when dealing with conduct or performance issues:-

Act swiftly

Do: deal with issues, however big or small, in a timely and effective manner. Doing so can nip minor issues in the bud and avoid them becoming a bigger problem.

Don’t: bury your head in the sand and hope the problem will go away. Performance issues and conduct concerns which are unmanaged frequently spiral into bigger problems. In our experience, tackling such issues head on is more likely to achieve a positive and creative solution for everyone – such as changing an employee’s working hours or job role to address a seemingly intractable performance problem.

Length of service

Do: remember to check the employee’s length of service before embarking on disciplinary action. If they have started working for you since 6 April 2012 and have less than two years’ service then your staff do not have any right to claim unfair dismissal (with some limited exceptions). As a result, it’s usually possible to avoid some of the procedural red tape of going through a full disciplinary process.

Don’t: forget there is no minimum length of service required for a discrimination or whistle-blowing claim. Employees without two years service commonly claim that their dismissal, or the disciplinary process, was discriminatory as a way to circumnavigate the service requirement. If you think the employee could have grounds to claim their dismissal is discriminatory, or they’ve raised an issue that could impact on patient care, make sure you do adopt a fair procedure and can prove that your actions are wholly unrelated to these issues.

Investigate the issue

Do: carry out a full and open-minded investigation prior to holding a disciplinary hearing. If you’ve been involved in the issues yourself already, ask a colleague or external professional to investigate the matter. Gather key documents and speak to any witnesses, including the employee. Make all the evidence available to the employee before you hold the disciplinary hearing.

Don’t: decide the outcome before the hearing, or do anything that could give the impression that you have. Keep an open mind about whether the allegation will be proven and any sanction until the hearing itself.

Appeals

Do: keep a partner separate from disciplinary investigations, hearings and conversations about the matter, to hear an appeal if necessary.

Don’t: forget the appeal chair doesn’t have to be a partner or internal member of staff. It is legitimate to ask an external person, such as an HR consultant, to hear an appeal and give their recommendations on outcomes to the practice.

Approach

Do: be proactive – it’s your practice, your professional reputation and they are your patients. Your team are there to serve those needs.

Don’t: be put off by horror stories of vast Tribunal awards and disgruntled ex-employees. Seek sensible, commercial advice based on a full understanding of the aims and objectives of your organisation.

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About the Author
Jenny Okafor-Jones, Partner (Barrister), Head of Employment & Immigration Team
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