Should Companies Even Make Disciplinary Exceptions?

We recently heard of a scenario where a trusted, high-performing, longtime employee of a medium-sized business was caught violating a company policy – a policy that two past employees had been terminated for violating, in keeping with company protocol.

The employer’s shock over the matter turned to frustration, then to a thought they initially hesitated to share:

Maybe…just maybe…did the employee’s impressive tenure and history with the company justify a second chance…? 



We have a few thoughts on the matter.

Nature of the violation

First and foremost, it’s worth pointing out that violations that call for termination are typically serious ones. More often, employers deal with smaller infractions. We say this to stress that conversations related to workplace discipline are ripe with nuance, and advice like what you’re reading here is never a replacement for legal counsel, if needed. Still, as an outsourced HR provider for the past 20 years, myHR Partner can offer some frameworks for navigating matters of workplace behavior, discipline, and even termination.

First, Acknowledge the Role of Risk

Conversations about workplace discipline all boil down to risk: Risk that, if you keep the violating employee, he or she might repeat the mistake, might have a diminished view of your authority, and/or that other employees – if they find out – might formally or informally claim discrimination.

Conversely, there’s the risk that if you terminate the employee, legal action from him or her might follow.

In light of this, we find it helpful to remind our clients that nothing you can do can guarantee that an employee (past, future, or present) won’t call a lawyer, the Equal Employment Opportunity Commission, or some other third-party organization with claims that they were unfairly treated.

Does this mean you should downplay the risk of legal action? Of course not! But we find that some business leaders are able to make clearer decisions when they acknowledge the inevitability of legal risk in any scenario, then channel energy toward areas where they do have more control – areas like disciplinary policy, enforcement, and even workplace culture.

The Most Risk-Averse Response

The most risk-averse response to this particular infraction would have been to terminate the employee per company guidelines.

The reasoning: By enforcing disciplinary practices, you reduce the larger risk of other employees (former, current, and future) claiming their own termination and/or discipline was discriminatory, or based on a protected class or protected activity. Responding to a discrimination claim can be costly, even if you win, which is why many companies choose to let go of an offending team member (and incur the risk thereof) instead of opening a larger can of worms.

A More Risk-Tolerant Response

A more risk-tolerant approach would be to document how this situation is different from past comparable offenses that resulted in termination. Maybe this employee consistently demonstrated good behavior over many years while other dismissed employees did not. If so, verify and document those facts. Of course, if these facts turn out to be lacking…if the employee’s favor in the eyes of management is ultimately more subjective than you initially realized… termination might in fact be in order.

Another risk-tolerant approach would be to change your company’s disciplinary practices and policies to accommodate this infraction. Updated practices might entail a written warning for the first policy violation and termination for the second. If you take this approach, make sure the changes are documented, clearly communicated to employees, and consistently applied moving forward.

Some Tips for Second Chances

If you do, in fact, give an employee a second chance, there are a few more things to be sure to do:

1. First, make sure it’s a decision you and your fellow leaders can personally tolerate. After all, this is a team member who gravely disappointed and perhaps even deceived you. Are you equipped to put personal grievances behind and rebuild trust and respect? To treat this employee equitably moving forward?
2. Second, communicate the seriousness of the infraction to the employee, as well as what will happen if he or she repeats it. Document your conversation. Tap into top HR resources and make the conditions of their tenure abundantly clear.
3. Last but not least, turn the mirror around and examine your business. Are certain infractions being repeated among team members? If so, can this be chalked up to human nature…or is something baked into hiring, operations, or some other aspect of management setting the stage for these violations? Employee offenses and company weaknesses are not mutually exclusive. Never be above introspection, or so focused on the offending employee that you can’t zoom out and ponder the issue more objectively.

Have more questions about this or other workplace behavior, discipline, or termination matters? Reach out to myHR Partner. We can answer your specific questions and show you how carefully-considered behavior policies and practices have helped businesses and organizations like yours.