Discipline: International snapshot

A high level outline of the obligations that apply in relation to workplace discipline across a range of jurisdictions.

Belgium

The rules on workplace discipline (ie possible breaches, applicable penalties and appeal procedure) must be contained in the work regulations. A company that does not have a section on disciplinary sanctions in its work regulations or does not have work regulations cannot take disciplinary action.

It is sufficient to refer to “any breach of obligations resulting from the employment contract or the work regulations”. In some cases, it may be useful to refer to the company rules such as policies if there are any.

The law does not set out any specific requirements for penalties, but they cannot include physical punishment, degrading treatment or imprisonment. Any fines imposed as a result of a disciplinary breach must be used for the benefit of the employees.

An employee must be notified of any penalty in accordance with a specific timeframe. It is always highly recommended that an employer holds a meeting with the employee before notifying the employee that he/she is to be subject to a penalty.

The work regulations must also provide for an internal appeal process that employees can follow when they are subject to a disciplinary penalty. Employees can also appeal against such sanctions before the labour courts. In such cases, the court will verify whether the penalty meets all the legal requirements and whether it is proportionate given the offence.

Further information is available here.

England and Wales

Disciplinary situations include misconduct and/or poor performance. Before commencing formal disciplinary proceedings, it is good practice to consider whether informal resolution is appropriate.

There are no specific rules which apply to the imposition of disciplinary sanctions. Common disciplinary sanctions include oral warnings, written warnings, final written warnings, demotion and loss of seniority. Employees cannot be suspended without pay unless there is a clear contractual right to do so, and suspension should only be used in instances of serious misconduct. It should also be made clear that suspension is not considered a disciplinary action.

Employers are obliged to set out disciplinary rules and/or procedures in an employee’s main terms and conditions or, alternatively, must refer the employee to where these can be found. There is no statutory procedure which must be followed when disciplining employees; however, an employer should bear in mind the Acas Code of Practice on Disciplinary and Grievance Procedures (the “Code”), which gives practical guidance on how to handle these issues fairly. Whilst failure to follow the Code does not in itself make a person or organization liable to proceedings, it will be taken into account in an employment tribunal.

The Code makes it clear that it is important to deal with disciplinary issues fairly. This includes dealing with issues promptly, allowing employees to be accompanied to formal disciplinary meetings, and allowing employees to appeal against any formal decision made. It is good practice to advise employees in writing of their right of appeal, stating any deadlines.

There are no specific timescales other than the general requirement that issues should be dealt with promptly and decisions should not be unreasonably delayed.

Further information is available here.

France

Workplace discipline is mainly regulated by law, which defines disciplinary sanctions, sets out a disciplinary procedure and provides penalties in case of breach. In addition, employers with at least 20 employees must set up internal regulations which must include disciplinary procedures and penalties. Any applicable collective bargaining agreement may also contain disciplinary rules which an employer must apply.

Disciplinary sanctions are defined by law as any measure, other than verbal, taken by an employer in response to behaviour of an employee which the employer considers amounts to misconduct, whether or not such a measure has an immediate effect on the presence of the employee in the company, his position, career or remuneration.

The misconduct must be a deliberate act or omission – poor performance is not a disciplinary situation.

A disciplinary procedure cannot be initiated more than two months after the date on which the employer became aware of the employee’s misconduct.

The range of sanctions includes: warning, suspension of the contract (without pay), transfer or a change of duties, demotion and dismissal. Financial penalties cannot be imposed.

Employers can only impose sanctions which have been set out in the company’s internal regulations and any sanctions imposed must be proportionate to the employee’s misconduct.

An employer cannot impose any disciplinary sanction before having implemented the appropriate disciplinary procedure:

  • Preliminary meeting: The employer must invite the employee to a preliminary meeting in writing (the letter must indicate that attendance is compulsory), during which the employer musy explain why the employee might be subject to a disciplinary sanction and must allow the employee to give an explanation.
  • Notification of sanction: the employee must be notified of the sanction in writing. The letter must set out the employee’s misconduct and the reason for the sanction. The employee should be notified of any disciplinary sanction from two days after the preliminary meeting (at the earliest) and no later than one month after the preliminary meeting.

Employees can appeal against a disciplinary sanction by bringing a claim before the Employment Court.

Further information is available here.

Germany

The most common disciplinary actions include reprimands, formal warnings, suspensions and dismissals with or without notice. Work fines are also possible but rare. Any case of misconduct or breach of duties may be subject to disciplinary action.

A formal warning has to identify the specific behaviour which is in breach of contract, a demand that the employee ceases such behaviour and a statement that if the breach continues or is repeated the employee's employment could be terminated. A dismissal will not be effective if a less severe penalty such as a reprimand or a formal warning would be likely to be effective to prevent future misconduct. Depending on the facts of the case it may not be necessary to issue a formal warning if the employee does clearly not wish to comply with his/her contractual duties or if he/she commits a serious breach of conduct. For a dismissal to be effective, formal requirements must be complied with (especially notification of an existing works council, dismissal letter in written form, administrative approval for dismissals of certain groups of employees).

Except for summary dismissals where the employer must give notice of the dismissal within two weeks of becoming aware of the misconduct, there are no fixed time scales for disciplinary actions. Other disciplinary actions may, however, not be effective if the employer does not take action for several months.

Except for reprimands the employee can fight disciplinary actions in court.

Further information is available here.

Hong Kong

In Hong Kong, employers are not required by law to follow any particular procedure when taking disciplinary action; an employer’s failure to follow a “fair” procedure will not render a dismissal unlawful.

If an employer wishes to implement disciplinary rules and procedures, they are normally set out in an employer’s staff handbook or as a separate policy.

Where an employer has adopted a disciplinary procedure, it is recommended that it be followed. Employers owe employees an implied duty of trust and confidence, and failing to follow a disciplinary policy may be argued by an employee to be a breach of that duty. Failure to follow a fair and reasonable disciplinary procedure prior to termination of employment may also give credibility to a discrimination claim.

Typical disciplinary actions include oral warnings, written warnings and dismissals. There is also a statutory right to suspend an employee for a period not exceeding 14 days (with or without pay), pending a decision as to whether to terminate an employee or pending the outcome of a criminal proceeding related to an employee’s employment. Employers are only very rarely allowed to reduce an employee’s wages, eg in cases of unauthorised absence or misconduct resulting in loss or damage to the employer’s goods.

Terminations generally must be carried out with notice or payment in lieu of notice; and summary dismissal may be justified only for the following reasons: willful disobedience of a lawful/reasonable order, gross misconduct, fraud or dishonesty, habitual neglect of duties, or any other reason permitting summary dismissal under common law. Employers are not obliged to give an explanation for termination or to grant an employee the opportunity to appeal.

Further information is available here.

Italy

The collective agreement (CCNL) applied by a company will set out general provisions relating to disciplinary issues and in addition to the CCNL disciplinary rules, an employer can also set up a Company disciplinary code. There is no need to agree the disciplinary code with the works council. Any penalty which an employer imposes on an employee must be in proportion to the seriousness of the employee’s breach and the circumstances surrounding the employee’s breach of duty (from a verbal or written warning through to suspension from work or pay or ultimately dismissal). The law and the relevant CCNL set out a procedure to be followed when a disciplinary matter arises. If this procedure is not followed, or not followed properly, then any disciplinary measure (including dismissal) would be null and void.

If an employee wants to appeal against any disciplinary action taken against him on the basis that it is not lawful, the employee may make a claim against the employer before a labour tribunal or can initiate a negotiation with the employer after having challenged the disciplinary action.

Further information is available here.

Netherlands

Typical disciplinary sanctions include oral warnings, written warnings, a final written warning, temporary suspension from work, fines, stopping or suspending salary payments, and termination including instant dismissal. There are no specific rules which apply to the imposition of disciplinary sanctions. From a good employer’s perspective, disciplinary sanctions should be reasonable and proportionate in relation to the employee’s misconduct.

There is no statutory disciplinary procedure which must be followed before disciplinary sanctions can be imposed. If there is a disciplinary procedure set out in the employment contract, collective labour agreement or internal regulations, this procedure should, of course, be followed. It can therefore limit the employer’s ability to conduct the procedure differently in individual cases, especially if the procedure also provides limited penalties or sets out the penalties per action of an employee.

From a good employer’s perspective, disciplinary sanctions should be taken as soon as reasonably possible. However, it is generally accepted that an employer cannot impose any disciplinary sanctions upon an employee, without the employee first being offered the opportunity to give their side of the story. In respect to a summary dismissal there is a strict statutory time scale , which must be carried out without delay. It is possible to suspend an employee from work during investigations, but as soon as the outcome of these investigations is clear, the employer should act without delay. If an employee is not instantly dismissed without delay, the dismissal will be null and void.

An employee cannot generally appeal against a disciplinary sanction imposed on him/her unless the right of appeal is set out in any disciplinary procedure. An employee can ask a cantonal court judge to revoke a disciplinary sanction imposed upon him/her and both the employer and employee can appeal against any decision made by the cantonal court judge.

Further information is available here.

Spain

An employer can only dismiss an employee for disciplinary reasons on the grounds of very serious infringement, pursuant to what is established in the Worker´s Statute Act or in the applicable collective bargaining agreement (CBA). Other sanctions may be appropriate less serious- infringements (eg suspension from duties without pay).

The disciplinary matters which can eventually end up in termination include, amongst others, continuous and unjustified absence from the workplace, lack of discipline or insubordination towards the employer or other employees, breach of duty of good faith, harassing other employees because of their racial origin, religious or personal conviction, disability, age or sexual orientation and sexual harassment, etc. Poor performance is also considered to be a serious infringement but is generally extremely difficult to substantiate. Overall, employers must have solid evidence when taking disciplinary action, otherwise such action is deemed to be unlawful.

The procedure to terminate an employee based on disciplinary grounds is established in the applicable CBA, and includes, as a minimum, a written notice requirement by the employer with a precise description of the employee´s misconduct and the date on which the dismissal becomes effective. Some CBAs also set out specific disciplinary procedures where the employee is entitled to make representations prior to the final decision. Following the effective date of the sanction (including termination,the employee can bring a claim before the Mediation, Arbitration, and Conciliation Service (SMAC) if he/she considers the employer has imposed an inappropriate sanction. If the parties do not reach an agreement at this first stage, the employee can then bring the claim further to the Labour Court, which may fully or partially confirm the sanction, or alternatively declare it unfair or null and void.

Further information is available here.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.