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 in a fair and lawful manner.
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
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.
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.
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 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.
Last updated: 18 June 2021