Issues during employment
Performance issues, disciplinary issues, grievances, probation periods and whistleblowing
What happens if you, or your employee, has an issue?
Employees should be given feedback about their performance, whether good or bad, on an ongoing basis. Ideally, they should have a formal appraisal at least once a year where they’re asked to reflect on their own performance and are given feedback and set objectives for the year ahead by the employer.
If the employee’s performance is unacceptably poor, a formal process should be followed in line with the process for disciplinary issues, which are set out below. Normally, at least two warnings are given prior to dismissal and the employee has the right to be accompanied to hearings and the right of appeal at each stage. In cases of poor performance, measures of support should be considered both before and during a formal process, for example, additional training, mentoring and alteration of job tasks.
If an employee’s conduct is unacceptable, then the disciplinary policy should be followed. As a minimum, the employer should:
- investigate the allegations of misconduct
- notify the employee of the allegations in writing
- invite the employee to a disciplinary hearing in writing
- give the employee the right to be accompanied at that hearing by a workplace colleague or a trade union representative
- provide the employee with a written outcome, also notifying them of the right to appeal
- hold an appeal hearing if required with the same right to be accompanied
- have the appeal heard by a more senior person in the organisation than the decision maker at the first stage, if possible.
Generally, an employee should be given at least two warnings, a warning and a final warning, before dismissal is considered. If the conduct is sufficiently serious, a single final warning may sufficient. In cases of gross misconduct, it might be appropriate to move straight to dismissal without notice. It’s important to take any mitigating factors into account before deciding the appropriate sanction. For more information about disciplinary processes see the ACAS Code of Practice.
Grievances should be dealt with in accordance with the grievance policy. Similarly to the disciplinary process, an employee who's raised a grievance should be invited to a hearing to discuss it, at which they should have the right to be accompanied. They should be notified of the outcome of that hearing in writing and given a right of appeal if they aren’t satisfied with the outcome. At the appeal hearing there is, again, the right to be accompanied. For more information about grievance processes see the ACAS Code of Practice.
The purpose of a probation period is to provide a suitable amount of time for the employer to assess the employee. In all but the most senior appointments or very short-term contracts, a probationary period is a good idea. The length of a probation period depends on the nature of the job and how long it will take the employer to assess the employee’s performance. It’s not unusual to see probation periods of three or six months. The employee's employment contract might also say that, during the probation period, their employment can be terminated on shorter notice than after their probation period is successfully completed.
If an employee or worker makes an allegation about unlawful conduct or other malpractice by the employer and is doing so ‘in the public interest’, they may have protection as a whistleblower under the Public Interest Disclosure Act 1998. Whistleblowing can be dealt with under the grievance policy but it’s a good idea to have a whistleblowing policy in place. A whistleblowing issue should be investigated even if it’s not raised as a formal grievance. For more advice, go to the Protect website.