When an employee has acted inappropriately at work or they have gone against company policy, employers can respond by taking disciplinary action. Embarking on a formal disciplinary procedure may become necessary to ensure that any unacceptable or improper behaviour at work, or poor performance matters, that cannot be resolved informally, are appropriately addressed.
Regardless of the type of misconduct or behaviour, employers must fact lawfully and follow a strict legal process when conducting a disciplinary procedure to avoid the risk of tribunal claims for unfair dismissal.
The following guide for employers, line managers and HR personnel examines the rules relating to disciplinary procedures, providing practical advice as to what steps must be taken to ensure that you act reasonably and lawfully at all times and avoid allegations of unfair treatment which may expose the organisation to tribunal claims.
The role of the disciplinary procedure
A formal disciplinary procedure is designed to address any conduct and capability matters at work. You may have concerns about the way in which an employee is behaving, perhaps because a complaint has been made about their behaviour, or you have ongoing concerns over their standard of work or ability to perform their job role.
Where the matter is relatively minor, any alleged misconduct or poor performance issues can often be dealt with informally, for example, by way of a discussion with the individual in question.
A misconduct matter could relate to relatively minor but ongoing issues such as lateness or unauthorised absences, or more serious misconduct, like theft or violence. A performance matter could arise because of an individual’s standard of work, or even their ability to undertake their work due to long-term ill-health.
However, where the misconduct or poor performance issues are too serious to be dealt with in this way, or the matter persists, a formal disciplinary procedure may need to be instigated.
Under the Employment Rights Act 1996, it may be lawful to dismiss an employee for conduct or capability issues, provided you follow a fair procedure and act reasonably in all the circumstances. In many cases, however, the disciplinary procedure, in itself, will ensure that any issues are resolved proportionately, and often without the need for dismissal.
To ensure that a fair procedure is followed, organisations should have a written disciplinary procedure in place which provides managers and HR with a pre-defined process to deal with conduct or capability matters, and providing employees with an opportunity to address any allegations made against them and to put their side of the story prior to any disciplinary action being taken.
The policy should explain what behaviour and performance issues might lead to disciplinary action and what action you might take in consequence. It should also include the contact details of someone your staff can speak to if they do not agree with any final disciplinary decision, setting out their right of appeal.
Absent any written procedure, this does not prevent you from taking formal disciplinary action, although a full and fair procedure must still be followed.
When using a disciplinary procedure, employers should follow the official ACAS code of practice on disciplinary and grievance procedures. Your organisation might already have a set procedure in place, although this should reflect the basic requirements of fairness and standard of reasonable behaviour as recommended by ACAS, including:
- Raising and dealing with issues promptly, without unreasonable delay.
- Acting consistently with any previous disciplinary decisions.
- Carrying out any investigations needed to establish the facts of the case.
- Informing employees of the basis of the concern or complaint and giving them a chance to respond before any disciplinary decisions are made.
- Allowing employees to be accompanied at any disciplinary hearing.
- Allowing an employee to appeal against any formal disciplinary decision made.
A failure to follow the code may not in itself make an employer liable to tribunal proceedings, nor does it automatically make any dismissal unfair, although a tribunal may take any such conduct or failure to meet the prescribed standards into account when calculating compensation.
What is a fair disciplinary procedure?
A fair disciplinary procedure should generally include the five following steps:
- An investigation into any allegations
- A written communication to the employee setting out the issue(s)
- A hearing to discuss the issue(s)
- A disciplinary decision
- A process to appeal this decision
The standard disciplinary procedure starts with a verbal warning and end with potential dismissal.
However, in conduct cases it is possible to skip levels of warning and go straight to final warning or dismissal where the conduct is either serious or gross.
In less severe cases, such as not following a policy or regular lateness, you may take a softer approach and have an informal discussion with the employee and issue a letter of concern before proceeding with your disciplinary process.
In absence and performance cases, it is standard practice that employers would go through all stages of warning, i.e. begin at verbal warning (which is usually on file for 6 months), if there is no improvement then you would convene a further disciplinary with the potential outcome of a written warning (which is usually on file for 12 months and is based on the verbal warning still being active), and so on.
Stage 1: Verbal Warning
Verbal warnings still forms part of the formal disciplinary process, and whilst it states “verbal” you should still confirm the outcome in writing detailing any areas for improvement or expectations going forward. You would usually issue a verbal warning in cases of minor misconduct / underperformance or initial concerns with levels of absence. The verbal warning will remain on your file for disciplinary purposes for a period of 6 months.
Stage 2: Written Warning
If the matter of concern giving rise to disciplinary action is sufficiently serious, or if there is still an active verbal warning on your file when the disciplinary procedure is instigated, then the next level of sanction is a first written warning which will be confirmed to you in writing following it being issued.
The written warning will remain on your file for disciplinary purposes for a period of 12 months.
Stage 3: Final Written Warning
If the matter of concern giving rise to disciplinary action is sufficiently serious, or if there is still an active written warning on your file when the disciplinary procedure is instigated, then the next level of sanction is a final written warning which will be confirmed to you in writing following it being issued.
The final written warning will remain on your file for disciplinary purposes for a period of 12 months.
First and foremost, you should establish the facts of the case, fully investigating what has happened or what has been alleged without unreasonable delay.
This could involve holding an investigatory meeting with the individual in question prior to any disciplinary hearing. You may also need to interview witnesses, and assess and collate any documentary or other evidence for use at any subsequent hearing. In misconduct cases, if practicable, different people should carry out the investigation and disciplinary hearing.
There is no automatic right for an employee to be accompanied at an investigatory meeting, although such a right may be allowed under your own disciplinary procedures.
If you decide that there is a disciplinary case to answer, you should notify the employee in writing of your intention to hold a disciplinary hearing. The decision whether to take any disciplinary action against the employee(s) should be made after the hearing and once all evidence and information have been considered. Disciplinary sanctions should not be made prior to the hearing taking place. The hearing should be held without unreasonable delay, whilst still allowing the individual reasonable time to prepare.
The letter should set out the nature of the allegations, providing enough detail for the individual concerned to be able to respond, including copies of any witness statements and any other written evidence. The letter should also explain when and where the hearing will take place and that they have the right to be accompanied by either a colleague, a trade union representative or a trade union official on reasonable request.
If the employee’s chosen companion will not be available at the time proposed for the hearing, you must postpone the hearing to a time proposed by the employee, provided this is reasonable and no more than 5 working days after the date originally suggested.
At the disciplinary hearing, you should explain the alleged concerns or complaint made against the employee and go through the evidence with them, giving them a chance to tell their side of the story. This could include any mitigating factors that the employee may wish to raise in their favour. The employee should also be allowed to ask questions, present evidence and call relevant witnesses in support of their case.
If the employee raises a significant new fact or issue at the hearing, you may want to adjourn to look into this matter. You should then rearrange the hearing at a later date.
Employers should also familiarise themselves with the rules on employees being accompanied to the hearing. If the employee is accompanied, certain rules apply to what the companion is allowed to do, such as presenting and summing up their case. They can also discuss matters directly with the employee during the hearing, although they cannot answer questions on their behalf. Where an employee is unwilling or persistently unable to attend a disciplinary hearing without good cause, you should make a decision on the available evidence.
Having heard all of the evidence and submissions, you will need to make a decision as to what disciplinary action, if any, will be taken in response. You must inform the employee in writing of your decision after the hearing, saying what action you are going to take.
If the matter is relatively minor, or information has come to light that mitigates the seriousness of an incident, you might decide to issue a verbal warning or take no action at all. However, you should still keep a written record of this. You should also warn the employee that any recurrence of the matter complained of could result in further disciplinary action.
For more serious misconduct or poor performance matters, you could decide to issue a written warning. If an employee’s first disciplinary matter is sufficiently serious, it may be appropriate to move directly to a final written warning. A first or final written warning should explain the basis of the issue, and the change in behaviour or improvement in performance required, together with a timescale and how long the warning will remain current. The employee should also be informed of the consequences of further misconduct or failure to improve performance within the set period, for example, a further warning, demotion or even dismissal.
If you make a decision to dismiss, the employee should be informed as soon as possible of the reasons for the dismissal, the date on which their employment will end, their period of notice and the right to appeal. Any disciplinary action taken, especially a decision to dismiss, must be proportionate to the matter involved, and consistent with previous decisions made about other staff in the same or similar circumstances.
Where some form of formal disciplinary sanction is needed, what action is reasonable or justified will depend on all the circumstances. A tribunal will take the size and resources of your organisation into account when deciding on relevant cases. In some instances, it may not be practicable for you to take all of the steps set out in the ACAS code, although every effort should be made to follow the code where at all possible.
Once a disciplinary decision has been made, the employee must be given the chance to appeal any action to be taken against them if they feel this is wrong or unjust. They should be asked to set out the basis of their appeal in writing. They should then be offered another hearing to discuss their appeal without unreasonable delay, ideally at an agreed time and place.
If possible, the appeal hearing should be dealt with by someone who has not already been involved with the original disciplinary action. An appeal hearing will be similar to the original disciplinary hearing and the employee will again have the right to be accompanied.
After the appeal hearing, you should write to the employee with the outcome of the appeal hearing as soon as possible.
How to handle gross misconduct
While gross misconduct can provide lawful grounds for summary (or instant) dismissal, employers should proceed with care and ensure they follow a fair process in deciding to dismiss an employee without notice or PILON. Organisations should have a disciplinary procedure in place that ensures compliance with the ACAS Code of Practice on disciplinary matters.
This means it is not generally advisable to dismiss an employee ‘on the spot’, but instead, requires a full and fair investigation and a disciplinary hearing to be conducted, ensuring the employee is:
- treated fairly and without discrimination
- informed of the disciplinary procedure and the possible disciplinary outcomes
- allowed to attend a disciplinary hearing to defend themselves against allegations of gross misconduct
During the investigation, it may be necessary to suspend the employee. However, you should make it clear that this is not a punitive measure. Ensure suspension is on full pay and the employee must be kept informed of the investigation so that they may offer their own evidence and prepare for the hearing. One benefit to suspending an employee in this way is to remove them from the workplace for the time being as their continuing presence may exacerbate the situation or impede on the investigation.
Where there is police involvement with the alleged gross misconduct, for instance, where money has been stolen from petty cash, the employer should still proceed with their investigation. However, it is advised to record the police’s findings as part of the disciplinary and grievance process.
The investigation should not only seek to prove whether an act of gross misconduct has taken place but also to inform the decision on whether to classify the employee’s behaviour as gross misconduct and dismiss them, by examining the following:
- How serious was the behaviour? e.g. life threatening or minor damage?
- Is there anything that could justify or explain the behaviour? Are there mitigating circumstances? e.g. was an employee bullied to an extent that they became violent?
- Could the situation be improved? e.g. is the employee truly sorry and willing to pay for items stolen from the business?
- Is it likely the act of gross misconduct will be repeated? e.g. is an employee likely to continue to bully other employees?
- What is the employee’s position in the company? e.g. where they have been negligent in handling equipment but the resulting damage was minor, could they be re-assigned to a different role or a different department?
- Is this the employee’s first offence? e.g. where an employee has a history of sexually harassing female employees, have previous disciplinary actions had any effect on their behaviour?
- What does the employer’s disciplinary and grievance policy say about this particular act of gross misconduct?
- If the investigation results in evidence of gross misconduct, you should arrange a disciplinary hearing to present the allegations and evidence to the employee and allow them the opportunity to provide their case in defence.
Following the hearing, a decision should be made as soon as possible and the employee should be informed in writing, along with details of the disciplinary action that has been decided. An employee accused of gross misconduct has the right to appeal against any decision made at the hearing.
An employer should not dismiss an employee accused of gross misconduct without following a disciplinary and grievance process. Failure to follow a fair and lawful process in dismissing an individual can give rise to tribunal claims for unfair dismissal.
Should you decide to dismiss the accused employee, you must be able to demonstrate that:
- you have treated the employee fairly and without discrimination
- you have proved the employee’s guilt to their own satisfaction
- you have fully investigated the gross misconduct in accordance with their disciplinary and grievance procedures, and in keeping with related legislation and good practice
dismissal is a reasonable response to the act of gross misconduct
- the employee was fully aware of what constituted gross misconduct and/or you had made this information easily available to the employee
Depending on the circumstances, it may be appropriate to consider a negotiated exit , which could have the benefit of removing the risk of a future tribunal claim while allowing the employee to exit the organisation without a dismissal on their personnel record.
Can an employee be suspended during a disciplinary procedure?
Employers should proceed with caution when considering suspending employees in relation to a disciplinary procedure. It may be that while a disciplinary matter is being investigated, it would support a more objective and thorough investigation if the employee were to be suspended from work. In these circumstances, where the investigation is in action and the hearing has not taken place, the suspension should not be considered a sanction since the decision should not yet have been made until after the hearing has taken place. If a decision is made to suspend an employee, it should normally be with pay and they should be told why.
An employee can be suspended without pay if their employment contract says this is allowed, but you must still be acting reasonably in so doing. If the employment contract does not provide for suspension without pay, you can still suspend an employee, provided you continue to pay them pending the outcome of any disciplinary hearing.
In cases where a period of suspension is considered necessary, this period should be as brief as possible, kept under review and it should be made clear to the employee that this suspension is not considered a disciplinary action.
Legal risks to avoid
Taking disciplinary action is not, in itself, unfair. That said, you must follow a full and fair procedure at all times. Where a fair procedure is not followed, and the employee is dismissed, they may have a claim for unfair dismissal. Even in cases involving gross misconduct, where this may justify a decision to dismiss without notice for a first offence, you must still investigate any allegations and provide the employee with an opportunity to respond.
In any case in which an employee is awarded compensation, any failure to follow the ACAS code of practice on disciplinary procedures could result in that award being increased by up to 25%. Further, if you fail to follow your own procedure, one which is set out in the employee’s contract of employment, this could amount to a breach of contract.
Examples of misconduct & grounds for disciplinary action
- poor timekeeping
- minor breaches of health and safety requirements
- unauthorised absence
- failure to follow the rules on reporting sickness absence
- breach of dress code
- failure to obey a lawful and reasonable instruction
- breach of employer’s smoking policy
- misuse of the organisation’s computer facilities, including misuse of email and Internet access
- using the organisation’s time for personal purposes, for example arranging one’s social life or holidays
- swearing at colleagues, managers or customers/clients
- minor instances of bullying and harassment
- negligence or carelessness in carrying out the work
- failure to take proper care of the organisation’s property
- (possibly) unsatisfactory job performance.
Employers often have rules of behaviour particular to their own organisation or even department.
Examples of gross misconduct & grounds for summary dismissal
Disciplinary rules should give examples of acts which the employer regards as acts of gross misconduct. It is important to make it clear that any list is not exhaustive. The rules may vary according to the nature of the organisation and what it does, but will usually include things such as theft or fraud, physical violence or serious insubordination.
Employees should be given a clear indication of the types of conduct that may be treated as gross misconduct and warrant dismissal without notice or pay in lieu of notice. Types of gross misconduct could include:
- fraud or deliberate falsification of records
- physical or verbal violence of any kind towards colleagues, managers or customers/clients
- breach of the organisation’s equality or diversity policy, especially any unlawful discriminatory behaviour
- serious bullying or harassment, including threatening behaviour
- misuse of an organisation’s property
- deliberate, wilful or malicious damage to property
- serious insubordination
- deliberate or flagrant failure to follow the organisation’s procedures and regulations
- bringing the employer into serious disrepute
- being under the influence of alcohol or illegal drugs at work
- serious negligence which causes or might cause unacceptable loss, damage or injury
- serious infringement of health and safety rules
- disclosure, without authority, of confidential information to an outside person or organisation
- serious breach of confidence subject to statutory whistleblowing protection
- offering or accepting bribes or favours with the intention of influencing behaviour
- raising a grievance or making an allegation maliciously
- serious misuse of the organisation’s computer facilities, including misuse of email and Internet access
- driving a vehicle belonging to the organisation without permission
Examples of ‘some other substantial reason’ relating to conduct
The following conduct might justify dismissal for “some other substantial reason” but is not in itself gross misconduct:
- criminal conduct outside of work that is relevant to the employment, or that might cause damage to the organisation’s reputation
- refusal to attend a medical examination with an occupational doctor if reasonably asked to do so
- refusal to agree to undergo a test for alcohol or substance abuse
- breach of the employee’s duty of fidelity, eg setting up a rival business while still employed.
Disciplinaries are one of the main causes of workplace disputes and tribunal claims. Employers are advised to take a proactive approach to legal risk management by ensuring managers and supervisors are trained to deal with conduct issues effectively, such as when and how to use informal steps, and when it is necessary to escalate to a formal disciplinary procedure.
DavidsonMorris’ employment lawyers work with employers to support with all aspects of workplace disciplinary procedures. We can advise on specific matters to help your organisation ensure compliance with your legal obligations while protecting your best interests. Through our fixed-fee employment law service, Triple A, employers can access unlimited employment law advice to support with workforce management. For expert advice and support, contact us.
Disciplinary procedure FAQs
What are the steps in the disciplinary process?
A fair disciplinary process should follow the ACAS code of practice, including promptly investigating a concern or complaint, holding a hearing if there’s a case to answer, and providing a right of appeal against any final decision.
What are the three main stages of the disciplinary process?
As a minimum, a disciplinary procedure should comprise a letter notifying the employee of the issue, a hearing to discuss the issue, and a decision in any disciplinary action.
What is disciplinary procedures in the workplace?
A workplace disciplinary procedure is the set process by which an employer will investigate a conduct or capability matter, providing the employee in question with the chance to explain their side of the story and appeal any final decision.
What is the most common type of disciplinary procedure?
The most common type of disciplinary action is the verbal warning; this is the first stage of the disiplinary procedure which typically results in the issue being resolved or the employee addressing their misconduct.
What is the first step of disciplinary procedure?
The employer should inform the employee in writing if they are subject to a formal disciplinary procedure.
Last updated: 18 October 2022