Generally, Freelancers and Workers are not covered under these procedures.

All Employers are required by law to have a written disciplinary procedure for employees and let you have access to this.  If your employer does not appear to have a written procedure please see below for the new ACAS Code for details of the basic process.

Your employer can call any employee to a disciplinary hearing if they think you have done something wrong (ideally they should talk to you informally first if the circumstances are appropriate).  Your employer will use the disciplinary hearing as a way of explaining to you what they think you have done wrong, ask for your side of the situation; at the end they will explain what improvement (or other outcome) there needs to be.

Employees have a legal right to request that a fellow worker or Trade Union official can accompany them to grievance and disciplinary hearings.  However,  following a recent 2009 Court of Appeal decision, that is still subject to Appeal (so ongoing), there may be certain situations where a qualified LEGAL representative may be able to accompany the employee at a disciplinary hearing – mostly where there is a contractual right to legal representation in regulated professions and the outcome of the hearing could deprive them of their right to practice their profession.

You can get advice, if you face disciplinary action, from your employers HR/Personnel department or a relevant manager, a union if you are a member, your local Citizens Advice Bureau (CAB), or by contacting ACAS on 08457 474747

During 2009 your Employer will have 2 ways of dealing with Disciplinary situations.

The Statutory Disciplinary and Dismissal Procedure needs to be followed for all Disciplinary proceedings that started before 5th April 2009 (i.e at least Step 1, below, has happened):

Step 1 – statement of grounds for action and invitation to meeting

• Your employer needs to put in writing your alleged conduct or other circumstances which has led the employer to consider dismissing or taking disciplinary action against you
• The employer needs to send this to you and invite you to a meeting to discuss the matter.

Step 2 – meeting

• The meeting must take place before any disciplinary action is taken (you can be suspended before this meeting in serious situations)
• You must have had reasonable time to consider your response before  the meeting
• You must take all reasonable steps to attend the meeting
• your employer must inform you of his/her decision after the meeting and explain how to appeal if you are not satisfied with the outcome.

Step 3 – appeal

• You must inform the employer if you wish to appeal and
• your employer must invite you to an appeal meeting
• you must take all reasonable steps to attend the meeting
• The appeal meeting does not have to take place before any disciplinary or dismissal action takes effect
• You must be informed, after the appeal, of the final decision
• You have a right to be accompanied to all meetings by a colleague or trade union representative.

The above Statutory procedures were repealed and from 6th April 2009 a new ACAS Code of Practice on Disciplinary and Grievance Procedures was introduced:

The details of the code are:

DISCIPLINE – Keys to handling disciplinary issues in the workplace

The Employer establishes the facts of each case

• It is important for the employer to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. In some cases this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing.

• In misconduct cases, where practicable, different people should carry out the investigation and disciplinary hearing.

• If there is an investigatory meeting this should not by itself result in any disciplinary action.  Although there is no statutory right for an employee to be accompanied at a formal investigatory meeting, such a right may be allowed under an employer’s own procedure.

• In cases where a period of suspension with pay is considered necessary, this period should be as brief as possible, should be kept under review and it should be made clear that this suspension is not considered a disciplinary action.

And informs the employee of the problem

• If it is decided that there is a disciplinary case to answer, the employee should be notified of this in writing. This notification should contain sufficient information about the alleged misconduct or poor performance and its possible consequences to enable the employee to prepare to answer the case at a disciplinary meeting. It would normally be appropriate to provide copies of any written evidence, which may include any witness statements, with the notification.

• The notification should also give details of the time and venue for the disciplinary meeting and advise the employee of their right to be accompanied at the meeting.

The Employer holds a meeting with the employee to discuss the problem

• The meeting should be held without unreasonable delay whilst allowing the employee reasonable time to prepare their case.

• Employers and employees (and their companions) should make every effort to attend the meeting. At the meeting the employer should explain the complaint against the employee and go through the evidence that has been gathered. The employee should be allowed to set out their case and answer any allegations that have been made. The employee should also be given a reasonable opportunity to ask questions, present evidence and call relevant witnesses.  They should also be given an opportunity to raise points about any information provided by witnesses.  Where an employer or employee intends to call relevant witnesses they should give advance notice that they intend to do this.

And allows the employee to be accompanied at the meeting

• Workers have a statutory right to be accompanied by a companion where the disciplinary meeting could result in a formal warning being issued; or the taking of some other disciplinary action; or the confirmation of a warning or some other disciplinary action (appeal hearings).

• The chosen companion may be a fellow worker, a trade union representative, or an official employed by a trade union. A trade union representative who is not an employed official must have been certified by their union as being competent to accompany a worker.

• To exercise the statutory right to be accompanied workers must make a reasonable request. What is reasonable will depend on the circumstances of each individual case. However, it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing nor would it be reasonable for a worker to ask to be accompanied by a companion from a remote geographical location if someone suitable and willing was available on site.

• The companion should be allowed to address the hearing to put and sum up the worker’s case, respond on behalf of the worker to any views expressed at the meeting and confer with the worker during the hearing. The companion does not, however, have the right to answer questions on the worker’s behalf, address the hearing if the worker does not wish it or prevent the employer from explaining their case.

The Employer decides on appropriate action

• After the meeting decide whether or not disciplinary or any other action is justified and inform the employee accordingly in writing.

• Where misconduct is confirmed or the employee is found to be performing unsatisfactorily it is usual to give the employee a written warning. A further act of misconduct or failure to improve performance within a set period would normally result in a final written warning.

• If an employee’s first misconduct or unsatisfactory performance is sufficiently serious, it may be appropriate to move directly to a final written warning.  This might occur where the employee’s actions have had, or are liable to have, a serious or harmful impact on the organisation.

• A first or final written warning should set out the nature of the misconduct or poor performance and the change in behaviour or improvement in performance required (with timescale). The employee should be told how long the warning will remain current. The employee should be informed of the consequences of further misconduct, or failure to improve performance, within the set period following a final warning. For instance that it may result in dismissal or some other contractual penalty such as demotion or loss of seniority.

• A decision to dismiss should only be taken by a manager who has the authority to do so. The employee should be informed as soon as possible of the reasons for the dismissal, the date on which the employment contract will end, the appropriate period of notice and their right of appeal.

• Some acts, termed gross misconduct, are so serious in themselves or have such serious consequences that they may call for dismissal without notice for a first offence.  But a fair disciplinary process should always be followed, before dismissing for gross misconduct.

• Disciplinary rules should give examples of acts which the employer regards as acts of gross misconduct. These may vary according to the nature of the organisation and what it does, but might include things such as theft or fraud, physical violence, gross negligence or serious insubordination.

• Where an employee is persistently unable or unwilling to attend a disciplinary meeting without good cause the employer should make a decision on the evidence available.

And provides employees with an opportunity to appeal

• Where an employee feels that disciplinary action taken against them is wrong or unjust they should appeal against the decision.  Appeals should be heard without unreasonable delay and ideally at an agreed time and place.  Employees should let employers know the grounds for their appeal in writing.

• The appeal should be dealt with impartially and wherever possible, by a manager who has not previously been involved in the case.

• Workers have a statutory right to be accompanied at appeal hearings.

• Employees should be informed in writing of the results of the appeal hearing as soon as possible.

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If you work in the UK Media Industries and have a question about this or any other topic, please e-mail us at workline@freelanceadvisor.co.uk

Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.