Many cases of employee misconduct can be handled without resorting to formal measures. However, suppose you have concerns about an employee’s work or conduct that cannot be resolved informally. In that case, you can start formal disciplinary action against them to ensure these matters are appropriately addressed.
Irrespective of the type of misconduct or behaviour, employers must act lawfully and follow a fair process when conducting a disciplinary procedure. Failure to do so may expose your business to a tribunal claim for unfair dismissal, leading to potential compensatory penalties and reputational damage.
In this guide, we explain what a disciplinary procedure is, the necessary steps that must be taken to carry out a disciplinary procedure smoothly and how you should prepare for and conduct a disciplinary hearing.
Grounds for Disciplinary Action
A disciplinary procedure is a formal process to address an employee’s misconduct (unacceptable behaviour) or performance issues at work. For example, you may have ongoing concerns over their standards of work or ability to perform their job, or you may be worried about how an employee is behaving or have had complaints about their conduct.
Under the Employment Rights Act 1996, it is lawful to dismiss an employee for conduct or capability issues so long as you follow a fair procedure and act reasonably in all circumstances. In many cases, however, the disciplinary procedure, in itself, will resolve any issues in a proportionate manner, often without the need for dismissal.
Misconduct
A misconduct matter could relate to a relatively minor but persistent problem, such as lateness, or it could relate to serious or gross misconduct, like violence or theft. Your disciplinary procedure should set out the types of behaviour that will be considered misconduct.
Some examples of misconduct include:
- harassment or bullying
- failure to take proper care of the business’s property
- insubordination, i.e. refusing to take lawful and reasonable orders from superiors
- absence without permission
- misuse of the internet or email
Dealing with Capability Issues
When an employee’s performance is an issue, or they don’t meet the requirements outlined in their employment contract, an employer can use a disciplinary procedure to address the problem and allow the employee to improve. Examples of poor performance may include:
- Missing sales or other business targets
- Making mistakes at work
- Taking too long to complete tasks
- Inability to master the skills needed at work
Conducting a Fair Procedure
A disciplinary procedure provides a framework that an employer should follow if there are concerns about an employee’s conduct or capability at work.
To comply with your obligations to follow a fair procedure, your business should have a written disciplinary procedure in place, providing you with a pre-determined process to manage any conduct or capability issues. At a minimum, you should follow the official Acas Code of Practice on disciplinary and grievance procedures (“Acas Code of Practice”), which sets out the specific steps an employer should take before dismissing an employee for misconduct or poor performance.
If a claim is made against you at a later stage, an employment tribunal will expect to see an employer following the Acas Code of Practice in most cases. If the tribunal finds that you have unreasonably failed to follow a provision in the Code, it may increase any compensatory award made against you by 25%.
The details of any applicable disciplinary rules should be set out in your employees’ employment contracts or handbook and made easily available to all staff.
Furthermore, employees should be given the chance to address any allegations made against them and to put their side of the story across before you resort to disciplinary action.
Disciplinary procedures should be fair and transparent. It should also include the following steps:
Informal Action
For poor performance and minor conduct issues, it is best to try and resolve the problem informally first before going through formal disciplinary proceedings. This will often be the easiest and quickest solution.
This should involve talking to the employee concerned and listening to their point of view, as well as agreeing on what needs to be improved, or if it’s a performance issue, setting up a training or development plan. Set reasonable targets for the employee to achieve and a date by which this needs to be reviewed, and ensure you keep a written record of what was agreed.
Investigations
If an informal conversation does not resolve the issue, you may decide to take formal disciplinary action. In such circumstances, you should inform the employee in writing straight away and give them sufficient information about the alleged misconduct or poor performance and an indication of possible consequences.
You should then gather evidence to find out as much information as you ‘reasonably’ can about the issue. You will probably need to have an investigatory meeting with the employee concerned and possibly witnesses to ask them what they know or saw. You will also have to collect physical evidence such as emails, paperwork, phone records, or attendance records.
The person investigating should check whether your business has dealt with a similar situation before to ensure consistency and should get balanced evidence from both sides rather than trying to prove guilt.
Communications with the Employee
It is important to keep talking to the employee being disciplined and any other staff affected throughout the procedure. Going through a disciplinary procedure is incredibly stressful, and as a result, it is also important to consider the well-being of your employees and, if necessary, provide support. This will hopefully avoid stress or other mental health problems as well as further action such as a grievance or a legal claim further down the line.
Giving the Employee Formal Written Notice
After the investigation, you may find there is no case to answer, in which case you should write to the employee to explain this and keep a written note of this.
Alternatively, you may conclude that there is a case to answer and that the employee should appear before a disciplinary hearing to decide whether a disciplinary sanction should be issued. While the hearing should be heard as soon as possible after the investigation, bear in mind that the employee should also be given reasonable time to prepare for it.
The amount of notice needed will depend on several factors, including the amount of evidence that has been collected during the investigatory stage. However, five working days’ notice would generally be considered reasonable. An employment tribunal may view a failure to give the employee sufficient notice as not following a fair process, meaning that it would likely find in favour of the employee in any potential decision.
You will need to write to the employee to give them formal notice of the hearing and should include the following:
- the alleged misconduct or performance issue
- any evidence from the investigation
- the date, time and location of the hearing
- information on the employee’s right to be accompanied at the hearing (see below) and
- possible outcomes of the hearing
The Disciplinary Hearing
The disciplinary meeting is possibly the most important part of the disciplinary process. It is best practice for different people to run the disciplinary hearing from those involved in the investigation where possible. It should be led by an independent meeting chair rather than a line manager already involved.
At the hearing, the allegation or concern should be explained clearly, and the employee must be allowed to say their version of events and challenge any evidence against them. The employee should also be allowed to ask questions and call their own witnesses.
Contemporaneous notes should be taken during the meeting – this will be particularly important if the matter escalates to a tribunal. Also, consider having a break in the hearing if necessary to allow the employee a chance to recompose and refocus on the matter at hand.
Right to be Accompanied
An employee who is asked to attend a disciplinary hearing must be given the right to be accompanied to the disciplinary hearing by a work colleague, a trade union representative or a trade union official. Alternatively, the employer can allow (but is not obliged) to allow an employee to bring someone else to the hearing, such as a family member or a Citizen’s Advice worker.
The employee’s companion can support the employee by setting out their case, asking questions on their behalf, taking notes and summing up the employee’s case at the end of the hearing. They cannot, however, answer questions on the employee’s behalf, and they should not be disciplined in any way for supporting the employee.
Possible Outcomes
It is not advisable to come to a decision at the close of the actual hearing; however, a conclusion should be reached without unreasonable delay following the hearing. The outcome should be confirmed in writing to the employee, and the outcome letter should also specify the process and deadline to appeal the decision if the employee disagrees with it.
The possible outcomes of a disciplinary hearing are as follows:
- No Further Action is Necessary – this may be the outcome if there is insufficient evidence or uncertainty about the misconduct or alleged performance issue.
- Verbal Warning – this is appropriate for minor instances of misconduct/first-time offence. It is still a good idea to have a written record of verbal warnings for the future.
- Written Warning – a more formal warning usually appropriate for a first-time instance of a more serious misconduct or performance issue. The written warning should confirm how long it will remain live, usually between six and twelve months.
- Final Written Warning – usually issued where changes set out in a first written warning are not met or where misconduct is serious. This usually stays on the employee’s file for 12 months.
- Demotion
- Dismissal – where gross misconduct has taken place, such as theft, or where the disciplinary process has had to be repeated, and the employee previously had a final written warning.
Contesting Disciplinary Action
The Acas Code of Practice makes it clear that the employee should have the right to appeal if they feel the outcome is too severe or if they feel that any stage or the disciplinary procedure was wrong or unfair.
Grounds for Appeal
Some examples of reasons why an employee may challenge a disciplinary action include:
- The employer didn’t follow their own disciplinary policy or the Acas Code of Practice
- the disciplinary process was not fair, for example, the employer did not tell them about the right to be accompanied at the disciplinary hearing or did not give reasonable notice of the hearing
- the evidence the employer used to make their case was insufficient
- the employer was inconsistent, for example, they have acted differently in the past in similar cases, or the decision was too harsh or unfair
The Appeal Process
An employee who wants to appeal any decision made in a disciplinary hearing will need to do so within the time limit provided in the outcome letter confirming the disciplinary action.
To ensure a fair process, the person within your organisation who hears the appeal procedure and conducts the investigation should not have previously been involved in the case. This may be difficult to follow for small businesses, but you could consider bringing in an external suitable person to conduct the appeal hearing.
As with the disciplinary hearing, the employee has a legal right to be accompanied at the appeal hearing, and you should adhere to a specific disciplinary appeal hearing format.
The person conducting the appeal will have to decide whether the original hearing was fairly conducted or whether a new investigation is needed before reaching a final decision. This might include finding new evidence, speaking to new witnesses and re-evaluating evidence.
Once a decision has been reached, it should again be conveyed to the employee in writing as soon as possible.
Here to Help
We are experienced in providing disciplinary advice for employers. We can help ensure that your disciplinary procedure documentation is up to date with the latest legislation and guidance but that it also meets the needs of your business.
We can also give disciplinary hearing advice for employers and draft documentation such as letters for disciplinary and appeal hearings and outcome letters. Contact us today at 0300 303 2071 or email us for more advice or information.
