Factsheet number: 5.5


Last Updated: 22 October 2020

Introduction

Sometimes you may be unhappy with a PA’s performance or their conduct or attitude. For example, they may not follow rules and procedures you have agreed with them, or they may have a poor attitude to their work or the way they speak to you. Often minor problems or misunderstandings can be dealt with informally and things will improve. However, where the problem persists or is more serious (gross misconduct) you may need to start formal disciplinary procedures. Many situations can be successfully resolved if they are managed well, however in rare cases you may have to dismiss your PA. This factsheet provides guidance on how to manage the disciplinary process fairly and legally.

Contents

1. Introduction

1.1 key terms

1.2 what is a disciplinary issue?

1.3 ensuring your PA is aware of disciplinary procedures

1.4 gross misconduct

1.5 criminal convictions

2. Disciplinary procedures

2.1 what is my PA legally entitled to?

2.2 writing to your PA

2.3 your PA’s right to be accompanied

2.4 the disciplinary meeting

2.5 after the disciplinary meeting

3. Disciplinary appeals

3.1 can my PA appeal against my decision?

3.2 employment tribunals

4. Further information

4.1 seeking further advice

4.2 Acknowledgements

1. Introduction

1.1 Key terms

Supervision meeting: regular meetings you have with your PA to discuss their performance. If there is an issue with their conduct or performance you should discuss it with them in these meetings and try to resolve it before it has the chance to escalate.

Investigation: if there is an issue with your PA’s conduct or performance you should investigate the problem so that you are clear about what happened. You should gather relevant evidence e.g. witness statements.

Disciplinary procedure: this is the formal action you take if the PA fails to improve after you have highlighted a problem with their conduct or performance. This involves carrying out an investigation, holding a disciplinary meeting and coming to a decision about what action you will take.

Appeal: this gives the PA an opportunity to have your decision reviewed if they do not think it is fair.

1.2  What is a disciplinary issue?

Disciplinary issues usually fall into three main categories:

1. Failure to follow rules and/or procedures

For example, persistent lateness, failure to observe health and safety procedures or misuse of equipment.

2. Poor attitude at work

For example, inability to work well with colleagues, aggressive attitude or harassment/ victimisation.

3. Poor performance

For example, failure to complete tasks as instructed.

In the first instance issues can often be resolved informally with a quiet word during the PA’s shift or a discussion in supervision. However, you should still make a note of the issue and how it was dealt with in the PA’s supervision notes so that you have a record if the problem persists. When discussing the issue with your PA, you should set out the problem very clearly including:

  • where and when it occurred
  • why it is not acceptable
  • how you need the situation to improve and by when

The PA may need some advice or further training to help them to improve.

However, where an issue is too serious to be resolved informally or where your PA has failed to improve after informal warnings, you may have to pursue the issue formally as part of a disciplinary procedure. This factsheet outlines the basic legal requirements you must observe in order to ensure fairness throughout the process.

In the worst case scenario you may have to dismiss your PA. However it is essential to understand that dismissal of any employee is covered by strict laws and if you do not follow the correct procedures when dismissing a PA, in the worst case scenario you may be required to attend an Employment Tribunal.  Summary dismissal i.e. sacking your PA ‘on the spot’ is illegal and your PA may be able to claim for unfair dismissal if you do this regardless of what they may have done.

Where possible the focus should always be on resolving the problem rather than ending the employment.

The rules and procedures outlined in this factsheet do not apply to redundancy dismissals or non-renewal of fixed term contracts.

1.3 Ensuring your PA is aware of disciplinary procedures

Your PA should have access to a written copy of your disciplinary procedures. Independent Lives’ 4.3 (a)  Example employment contract (written statement of employment particulars) contains a standard disciplinary procedure.

Your PAs must be made aware of the following:

  • your disciplinary rules.
  • your disciplinary/dismissal procedure.
  • the name of the person to whom they should appeal if they are unhappy about a disciplinary or dismissal decision.

1.4 Gross misconduct

On rare occasions a PA may do something that is so serious that it completely breaks the trust you have in them. Examples of gross misconduct include: 

  • verbal or physical aggression towards you.
  • serious incapability through alcohol or being under the influence of illegal drugs.
  • serious negligence which causes unacceptable loss, damage or injury to you or someone else in the workplace.
  • stealing from you.

In these cases you should go straight to the formal disciplinary process. However you must still not sack your PA on the spot.  Your PA has a right to explain themselves in a formal meeting before they are dismissed.  If you do not want to see your PA or you do not feel comfortable having them in your home, you should suspend them on their normal pay while you arrange for the disciplinary meeting to take place.

1.5 Criminal convictions

If your PA is charged with, or convicted of a criminal offence whilst they are working for you, this is not normally in itself reason for disciplinary action. Consideration needs to be given to what effect the charge or conviction has on the employee’s suitability to do the job.

It is important to be aware that a lot of PA work may involve a Regulated Activity, as such, any criminal conviction may have more serious implications than it would do if the PA was working in a different type of job.

2. Disciplinary procedures

2.1 What is my PA legally entitled to?

  1. a formal meeting (‘hearing’).
  2. reasonable notice of the meeting.
  3. a letter explaining what the issue is, why the meeting is being held and who will conduct it.
  4. to be accompanied by a colleague or other suitable person.
  5. copies of any documents to which you will refer e.g. disciplinary procedures, investigation notes, evidence, witness statements, rules or procedures.
  6. to appeal if they do not agree with your decision.

2.2 Writing to your PA

If you are considering disciplinary action or dismissal, you should write to your PA setting out the problem and inviting them to attend a disciplinary meeting.

The letter should contain information about:

  • the alleged misconduct or poor performance and when this occurred.
  • its possible consequences.
  • the date, time and location of the disciplinary meeting.
  • the employee’s statutory right to bring a companion to the meeting.

You should give your PA enough information to allow them to prepare a reply before the meeting so that they can put their side of the case forward. As such, you must include copies of any written evidence that you intend to use at the meeting e.g. witness statements or supervision notes.

The time, date and location of the meeting must be agreed to by the PA and must be reasonable. Other than suspend the PA on full pay, you must not take any action before the meeting.

If either party intends to call witnesses to give evidence at the disciplinary procedure i.e. another member of staff, they must give advance notice of this.

2.3 Your PA’s right to be accompanied

Your PA has a statutory right to be accompanied to the disciplinary meeting. They can bring:

  • a colleague
  • a trade union representative
  • a trade union official

If they do not have access to any of the above they could bring:

  • a family member
  • a Citizens Advice Bureau worker

The companion can:

  • present and/or sum up the PA’s case
  • speak on the PA’s behalf
  • speak to the PA during the hearing

However, they cannot:

  • answer questions on the PA’s behalf
  • address the meeting if the PA does not wish them to
  • prevent you from putting forward your case/ evidence

If the companion is also one of your PAs they are protected from unfair dismissal or other mistreatment for supporting your PA through the disciplinary process.

The PA must let you know who they plan to bring to the meeting. In certain circumstances it would not be reasonable for them to be accompanied by certain individuals e.g. someone whose presence might prejudice the hearing or someone from a remote geographical location if someone suitable and willing was available closer.

2.4 The disciplinary meeting

In the disciplinary meeting you should fully explain the complaint against your PA and outline all the evidence you have gathered. You should then give your PA the opportunity to set out their own case, ask questions and (if appropriate) to call relevant witnesses.

If the PA raises a significant new fact or issue in the meeting you may wish to suspend the meeting to look into the new facts/issues further. If this is the case you should rearrange the meeting for a later date.

Where a PA is persistently unable or unwilling to attend a disciplinary meeting without good cause, you can make a decision in their absence using the evidence available, however, you should ensure that your PA is first made aware of this in writing.

2.5 After the disciplinary meeting

After the meeting you should write to your PA outlining your decision and giving details of any action you will be taking. You must inform your PA of their right to appeal your decision. When making a decision about what action is reasonable you should consider the following:

  • the action taken in similar cases in the past
  • whether this PA is being unfairly singled out for something that all your PAs do
  • the PA’s disciplinary record, general work record, work experience, position and length of service
  • any special (‘mitigating’) factors
  • whether any training, additional support or adjustments to the work are necessary

Your decision might be:

No action

If the allegations of misconduct or poor performance are found to be untrue or there is strong mitigating evidence, you may wish to take no action.

First written warning

Where misconduct is confirmed or the PA is found to be performing unsatisfactorily, it is usual to give them a first written warning. A further act of misconduct or failure to improve performance within a set period would normally result in a final written warning. When issuing a first written warning you must outline:

  • the problem and the improvement that is required.
  • the timescale for improving  & a review date.
  • details of any support eg training, that you will provide to assist the PA

Final written warning

If the issue is very serious e.g. the PA’s actions have had, or could have had a serious or harmful impact on you, it may be appropriate to issue a final written warning. You may also issue a final written warning if the PA has already received a first written warning and has failed to improve in the set timescale. When issuing a final written warning you must outline:

  • the problem and the improvement that is required
  • the timescale for improving  & a review date
  • details of any support e.g. training, that you will provide to assist the PA

The PA should be informed that further misconduct or failure to improve performance, within the set period, may result in dismissal.

Your PA should only be dismissed if, despite first and final written warnings, they do not improve to the required level or if they have committed gross misconduct. Dismissal must be reasonable taking into account all the circumstances. Unless the PA is being dismissed for gross misconduct, they should receive the appropriate period of notice or payment in lieu of notice.

The PA should be informed of the reasons for their dismissal, the date on which the employment will end, the appropriate period of notice and their right of appeal. PAs with one year + service have the right to request a ‘written statement of reasons for dismissal’ which you must provide within 14 days. A female PA who is dismissed during pregnancy or maternity/ adoption leave is automatically entitled to the written statement without having to request it and irrespective of length of service.

3. Disciplinary appeals

3.1 Can my PA appeal against my decision?

Your PA has the right to appeal against your decision if they feel that the action taken against them is wrong or unjust. To do so they must write to you to inform you that they are appealing your decision, explaining why they don’t agree with your decision.

Appeals should be heard without unreasonable delay. Where possible the appeal should be dealt with by someone who has not previously been involved. The appeal hearing is run similarly to the original meeting and your PA retains the right to bring someone with them.  After the appeal meeting, you should write to your PA to let them know your final decision explaining the reasons for this.

3.2 Employment tribunals

If your PA remains unhappy with your decision after the appeal they may choose to take you to an employment tribunal, if eligible. They must do this within three months of the alleged incident or within three months of their employment ending. 

Employment tribunals are independent panels who determine disputes between employers and employees over employment rights. They have legal powers including the power to fine you if the tribunal does not find in your favour.

Cases are usually heard by a panel of three people including a legally qualified Employment Judge, and two non-legal members who are people who have experience dealing with employment problems from the point of view of employers or employees.

4. Further information

4.1 Seeking further advice                                                  

We strongly advise you to contact Independent Lives or your employer’s liability insurance provider if you are considering taking any type of disciplinary action against your PA. Independent Lives will be able to provide you with further advice and guidance specific to your circumstances

Alternatively you can contact ACAS for additional information at www.acas.org.uk or on 0300 123 1100 (8am-8pm Monday to Friday and 9am-1pm Saturday).

4.2 Acknowledgements

The ACAS statutory Code of Practice on discipline and grievance available at www.acas.org.uk

Discipline and grievances at work: the ACAS guide available at www.acas.org.uk