22Feb

Do you know the difference between the two? Do you know how to handle either situation effectively?  Do you know how to do both compliantly?

In our experience, many businesses get this wrong. Getting it wrong, means, at best, as the situation is not dealt with. an employee continues to be a problem and unproductive,. At worst, if not handled compliantly, it could lead to a dispute with an employee leading to a significant financial claim on your business.

Here we guide you through the differences between corrective action vs disciplinary action. When to determine either course of action, and the effective steps to take in each case.

What is corrective action?

Corrective action is an attempt to improve or modify poor performance and its cause. This is usually behaviour which is below that expected in the role. Vital to this process is being clear on the behaviours and performance expectations you have of your people, which is often where many employers fall-down straightaway. Corrective action starts with performance management – in providing feedback or coaching to seek to adjust someone’s behaviour and performance. It can develop into a verbal and / or written warning if that behaviour continues unabated. It’s also important to distinguish capability / performance issues from those of conduct. Or put another way, skill vs will. Is the issue that the person doesn’t have enough skill to do the job? If so, this is a performance issue. Or, is it the case that they don’t have the will e.g., right attitude to do the job (they know how to do it but won’t do it)?

What is disciplinary action?

Disciplinary action is action taken when corrective measures fail to correct previous problems, or where the issue is of the person’s conduct / will rather than their capability / skill. Disciplinary actions are also taken when the seriousness of offenses, such as gross misconduct, warrant more formal measures. For instance, a suspension or dismissal. Some mis-conduct examples include bullying, harassment, being careless and wasting time, refusing to do work (‘insubordination’) and being absent without permission (some people call it absent without leave or ‘AWOL’).

How do you get the basics right?

The key is to have a comprehensive Employee Handbook which sets out clearly your HR policies, including your disciplinary procedure definition and policy.

Firstly, it must set out your company’s policies – if you like, the rules of the business. These may cover a multitude of areas such as Computer use, Mobile phone use, Social Media, time keeping, absence reporting, holiday rules, maternity and family friendly policies. Misconduct is deemed to have taken place if any of those policies are not followed – or rules are broken.

Secondly, one of those policies will need to be your disciplinary policy. This will set out what disciplinary steps you may take and the process that will be followed, which must be compliant with the ACAS code of practice.

All employees should understand your company policies and your expectations of them – along with the consequences of them not being followed.

Equally, all managers should understand, be trained and have the capability to effectively and compliantly enforce those policies.  Through effective performance management, they should be able to turn around poor performance  The same is the case for transitioning performance management into disciplinary matters – or straight into HR disciplinary actions for behaviour that is conduct related. For example, this applies to inappropriate behaviour or action that breaks workplace rules – and may be considered as a case of gross misconduct.

Again, this is where many employers fall short by not communicating expectations to staff and / or not training managers on how to manage performance or undertake formal proceedings.

Why start with an informal approach?

A disciplinary procedure is a formal way for an employer to deal with an employee’s:

  • unacceptable or improper behaviour (‘misconduct’)
  • performance (‘capability’)

Before starting a disciplinary procedure, the employer should first see whether the problem can be resolved in an informal way. This can often be the quickest and easiest solution. An effective performance management process and system helps with this.

An effective performance management system consists of:

  • delivering constant feedback
  • having regular one-to-ones which may include a performance review
  • providing training and development, if there is a skill / performance issue

How to implement an effective performance management system is contained in a separate blog of ours. https://www.wrightpeoplehr.com/blog/how-to-provide-performance-feedback-to-your-employees/

In summary, the aim is that through regular dialogue, expectations are set, performance is monitored and if an employee falls below expectations, then feedback can be given and improvements made. It’s about being pro-active. Spotting problems quickly and dealing with them, before they escalate.

What happens next if the informal approach doesn’t work?

Your first formal step is to put employees on the Performance Improvement Plan (PIP), which breaks down the areas of improvement and sets SMART goals for improvement. This would be when you have seen repeated patterns of poor performance and have raised these concerns repeatedly by giving feedback through your performance management process – and the behaviour has not changed.  This may be accompanied with a verbal warning. Ultimately, as you go through this process and no change occurs, then this can result in a written warning, followed by a final written warning, and potentially dismissal – based on what your disciplinary policy states in your Staff Handbook.

An overview of the steps to take through a Performance Improvement Plan are set out in another one of our blogs. https://www.wrightpeoplehr.com/blog/how-do-you-dismiss-someone-for-poor-performance/

When do HR disciplinary actions take place?

The quick answer is that it depends on the outcome of the formal Performance Improvement Plan – or the severity of the misconduct. The possible outcomes of the formal Performance Improvement Plan (PIP) are:

  • No disciplinary action, but continuation of the PIP. If improvements are still not meeting expectations – further SMART goals to be set / monitored and achieved
  • No disciplinary action – if expectations are being met, move to an informal performance management process of one-to-ones and regular feedback.
  • Disciplinary action (a written warning) – if continuation of PIP and no change.
  • Dismissal – after two previous written warnings and if no change continues to be made, having followed a fair and compliant process.

There is usually “three-strikes then you’re out`’ rule: verbal warning, first written warning, final written warning and then dismissal.

However, where the behaviour is conduct related rather than performance, then the appropriate action to take may be disciplinary meeting followed by a written warning. Or, in the case of gross-misconduct, straight to a disciplinary meeting followed by dismissal.

What is the difference between misconduct and gross misconduct?

There is no strict legal definition of gross misconduct. But the Government defines gross misconduct as “theft, physical violence, gross negligence, or serious insubordination”. But, it can also refer to employee behaviour that destroys the relationship between you and the employee, for example, a breach of trust.

If, following a proper disciplinary procedure, an employee is found to be guilty of an act of gross misconduct, the employer will be entitled to dismiss without any notice or payment in lieu of notice. However, any proven accusations of less serious misconduct might result in some type of formal warning – either verbal or written.

The difference between misconduct, serious misconduct and gross misconduct can sometimes not be immediately obvious to a manager who has little experience of this. Therefore, we would recommend using a HR Consultant who, through experience, can make a proper judgement call on the severity and the appropriate action to be taken. It is also important to consider any precedents of previous disciplinary outcomes for similar issues to ensure that you are being fair and consistent.

What is disciplinary action?

If the issue relates to conduct, firstly there should be an investigation to understand the events that have taken place and what lead up to them – who may have witnessed the issue, and any data to support it.

If Disciplinary action is then required, either after an investigation or a PIP that hasn’t resulted in improvement, then an invite letter for a disciplinary meeting should be given to the employee. It should detail a summary of the issues, any investigation or PIP that has taken place, the time, date, place of the meeting, anyone who will be present (including HR or a note taker) and that the employee can be accompanied by a work colleague or trade union official (if they are a trade union member). The employee should confirm they can attend the meeting and if / who they are bringing. The invite letter should be sent either 24 or 48 hours before the meeting (depending on your policy) to allow the employee time to prepare.

  • At the disciplinary meeting notes should be taken – both the hearing manager and employee should be able to speak and present their side of the case.
  • The meeting should be adjourned to consider an outcome – this could be a short break.
  • Then the outcome should be explained and the reason for it. If a warning is given, the duration of the warning and the consequences if improvement isn’t made, should also be outlined. An objective should be set around the expectation of the required improvement. This would be a further PIP in the case of performance improvement.
  • The employee should be made aware of the right to appeal the outcome if they feel it was unfair – who they should send this to and in what time frame (determined by the Disciplinary policy). 

Looking for help to deal with poor performance or misconduct?

Let’s talk

At Wright People HR we’re all about pro-activity when it comes to HR – supporting people and businesses to grow, and avoiding the problems with people that can set you back.

That’s why we recommend doing the right things to prevent poor performance or misconduct from happening in the first place, which include:

  • A comprehensive Employee Handbook with a clear disciplinary policy, clearly communicated to all employees and understood by managers who are capable of effectively enforcing it.
  • Having an effective performance management process in place that spots and deals with problems early on and turns them around.
  • Well-trained managers who can informally provide effective feedback and coach under-performing employees. They should also be able to deliver a more formal Performance Improvement Plan.
  • Developing the understanding and capability to deal with misconduct at its varying levels of severity, and to do so by following a fair and compliant process.

We can help with the policies, processes and training to embed a pro-active approach. Equally, if it’s gone beyond that, we can help support or deal directly with any difficult or serious disciplinary situation.

 

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