What is a disciplinary process?
A disciplinary procedure is a formal way for an employer to deal with an employee's ‘misconduct' or ‘capability’. In other words, any action taken by the employer as a result of an act of the employee which is considered by the employer to be “at fault” is a part of the disciplinary process. While there is no exhaustive list of being “at fault”, any unacceptable or inappropriate behaviour on the part of the employee can be considered as ‘at fault due to misconduct’ and the inability to do the job an employee is hired for can be considered as ‘at fault due to capability’
Defining misconduct
Misconduct is the behaviour or action of an employee who does not respect their obligations towards their employer. This could be in the form of voluntary non-compliance to the employer’s code of conduct, negligence of duties, refusal to comply with an employer’s directive.
Some such examples are as below:
Fraud - false representations, forging of documents, incorrect identification
Disrespect for other employees - harassment, bullying, physical violence, threats, denigration
Serious insubordination - refusal to act in accordance with reasonable directives from employer
Negligence - gross negligence or abandonment of care towards one’s duties
Non-compliance with the obligation of discretion - criticism, spreading negative messaging about the organization or its employees on social network or among external stakeholder communities that could harm the functioning of the company
What to do in case of poor performance or capability issues?
Please visit our help article on performance management to understand how effective performance management structure can be built
Dealing with misconduct
Informal resolution:
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. Communicating with the employee in confidence, understanding the employee’s perspective, making changes as maybe necessary to avoid such situations, agreeing to work with improvements can help achieve a quick resolution
Follow a fair procedure:
It is extremely important to follow a fair disciplinary procedure to handle misconduct in cases where it is not resolvable through an informal way or in cases of “grave faults”. While, administrative and logistical arrangement can slightly vary from country to country, the following a fair process is a prerequisite in all jurisdictions before an outcome is determined. In case an employee appeals to a labor council or employment tribunal, judges will look at what fair proceeding was carried out by the employer. Here are some critical aspects that should be ensured to follow the process:
Carry out a reasonable investigation to make sure that the decisions made is not claimed to be unfair. The purpose of the investigation is to gather sufficient information about the alleged misconduct
Ensure confidentiality to protect the interest of all involved in the matter
Continuous communication to the affected parties about the status and the next steps. This helps with the work morale, mental health and overall dynamics
Look at all past cases of similar nature and what rationale was followed to deal with them and stick to the code of regulations (organizational and statutory)
An employee for whom the investigation is being carried out, needs to be informed about the process that would follow and why, through a formal communication
Possible sanctions following a disciplinary action
No action needed: In this case too, the employer should speak to everyone involved in the proceeding and let them know that - Following the investigation, it was found that there will be no need to proceed with any action. This is to ensure a harmonious and conducive environment for the employee to continue working.
Verbal warning: Some cases of infringement could be dealt by speaking to the employee and making them aware of the impact caused due to their action. These are mostly cases where the impact is not too grave and may have been committed by the employee unintentionally, or without knowledge and/or for the first time.
Written warning: A written warning is a formal warning that the employer can give the employee at the end of the disciplinary procedure. Depending on the disciplinary code on the organization, the employee can be issued a warning letter which should say - what the misconduct was, what changes are expected and within what time, what could be the repercussions of a repeat action. For example, failure to comply with a policy such as informing the manager within defined time before proceeding on planned leaves, could be handled by a verbal warning first, followed by a first warning letter and in case another such instance occurs a final warning letter could be issued. However, if the employee’s actions could have seriously jeopardized the business, then it is possible to directly issue a final warning to the employee.
Financial sanctions: It is important to note that while an employee could be fined or be subjected to financial penalty, this may not be possible in some countries.
Role change: Depending on the outcome of the disciplinary proceeding, it maybe deemed necessary to reduce the “responsibilities” of an employee following a fair process of investigation and discussing this with the employee. Of course, statutory rights in the employee’s jurisdiction and clauses as per employment contract will need to be considered before any action is taken.
Dismissal following disciplinary: Contrary to the popular belief, a dismissal does not always need to be preceded by three warning letters. Depending on the gravity of the fault, evidence, country of employment, it maybe be possible to dismiss the employee following a fair procedure of investigation. It should also be remembered that not all misconducts result in dismissal as a fair outcome.
Employee’s right to challenge the sanctions
It is important to remember that employees have a right to appeal following the outcome. They can rightfully do so if: a) The misconduct is not tantamount to the outcome i.e the outcome is too severe in comparison to the misconduct and b) If the employees feel that the disciplinary process followed by the company was unfair or wrongful.
This is why it is important for the employer to ensure that the outcome is decided only on the basis of the following:
Keeping in mind the limitations and possibilities of the legal framework in the employee’s jurisdiction
The findings from the disciplinary investigation
Fair and reasonable outcome
Following the same rationale as was done in any similar cases before
Dealing with a situation of misconduct for an EOR employee
Many countries place strict legal obligations on the employer (technically in this case Omnipresent or its Local Service Provider) when it comes to proceedings that affect the employment relationship such as a disciplinary process. This may include having to consult with the employee, sending them communications through registered letter before initiating an investigation process, or inviting a chosen representative of the employee such as a trade member, a works council member or a legal advisor before subjecting them to a disciplinary hearing.
Even for performance management some countries such as Finland may necessitate issuing a formal warning letter to inform the employee about a possible repercussion in case the employee’s performance does not improve through a PIP. In the Netherlands, employment cannot be unilaterally terminated without valid grounds and prior approval from either the Public Employment Services (PES) or the court. The Dutch system is a closed termination system, which means that employers must justify terminations based on legal grounds and follow strict procedural requirements.
As the legal employer, Omnipresent will need to be informed as soon as a misconduct, that cannot be dealt through an informal procedure, is identified. Omnipresent will act in the strictest confidence and all actions taken will be in close consultation with the client. However, as the legal employer Omnipresent has a duty to not only participate in the process but determine the steps as needed. For particularly complex cases, local legal advice will be necessary to protect the legal interest of the employer.
Once Omnipresent has all the necessary details, a meeting is set up to communicate the required process and walk through the next steps. Following country-specific procedural requirements and documentation can make a real difference both for cases that turn contentious and also for cases that can be effectively resolved.