Question:

I am in the process of revising the employee handbook for my company. I would like to make some changes to our existing discipline policy. A friend who works in HR suggested that I add a “progressive discipline” policy to the handbook, though I’m not entirely sure what this entails. Can you explain?

Answer:

A “progressive discipline” policy involves a system in which discipline is imposed in graduated levels of severity against an employee who is unable or unwilling to meet his/her employer’s performance standards. In this type of system, each subsequent penalty is more serious than the one that immediately preceded it, hence the term “progressive” discipline. This type of policy typically involves a series of oral and written warnings and suspensions, ultimately culminating in termination if the employee’s misconduct or poor performance continues.

Employers who utilize progressive discipline systems generally do so as a way to constructively address employee misconduct and performance issues. Progressive disciplinary measures can help improve performance by alerting employees to problem areas, and by providing advance notice that a failure to improve in those areas will result in further (and more serious) disciplinary action. This kind of system therefore encourages employees to address whatever issues they are having, and also helps to deter future problematic behavior. If the employee succeeds in improving his/her performance and/or conduct, the employer benefits by retaining a valuable member of its workforce. By the same token, if the employee does not improve and is ultimately terminated, the employer can show that it made a good faith effort to counsel and work with the employee but was unsuccessful in doing so. This can become important if the employee tries to later claim that he/she was treated unfairly or in a discriminatory manner.

Progressive discipline policies can include a variety of different types of discipline. When selecting a proper form of discipline, the employer will typically want to consider the nature of the misconduct or performance problem, the circumstances of the situation, the employee’s past performance record, and the employer’s past practices in handling such a situation. The employer may then select from a range of sanctions, such as a warning or suspension, or some other form of discipline that is appropriate given the situation. Employers should be careful not to limit the types of discipline that they can impose, and a progressive discipline policy should therefore state that disciplinary measures include, but are not necessarily limited to, those that are specifically mentioned in the written policy.

If you do decide to implement a progressive discipline policy, you will want to be sure that it is carefully worded and administered, so as to avoid exposing yourself to liability. It is essential that all of your supervisory personnel are familiar with and understand the policy, and that they enforce its provisions consistently. Knowing how an issue has been dealt with in the past will also guide your supervisors, and will assist them in the fair and consistent application of your discipline policy.

It is important to retain the ability to deviate from the progressive discipline policy when warranted by the circumstances. While it’s true that you should attempt to follow the policy as consistently as possible, you also need to have the flexibility to take immediate action if necessary, such as terminating an employee for serious misconduct like theft or assault. Therefore, a progressive discipline policy should clearly state that employees are not guaranteed a series of warnings or disciplinary steps prior to being terminated.

It is also important that you clearly reserve your right to terminate an employee on an at-will basis. Disgruntled former employees sometimes try to argue that a progressive discipline policy implies that “good cause” is required before an employee can be terminated. In order to avoid such an interpretation, employers should expressly reserve their right to terminate the employment relationship at-will, with or without cause or advance notice. This should be stated within the disciplinary policy itself, in addition to appearing in the at-will policy that should also be included in your handbook.
– – – – – – – – – – – – – – – – – – – – – – – – – –
Back to Menu- Work Place Law 2007 Articles