Disciplinary Process Overview

Employers should ensure they follow a disciplinary procedure in situations involving alleged misconduct to avoid exposing themselves to potential claims of unfair dismissal and / or breach of contract.

When implementing either contractual or non-contractual procedures, a failure by the employer to meet the minimum standards set out in the ACAS Code of Practice on disciplinary and grievances may result in an Employment Tribunal adjusting any unfair dismissal compensation awarded to a claimant by up to 25%.

Things to consider in any disciplinary action

1. Always carry out an appropriate investigation (see below). Where possible, this should be carried out by someone who will not conduct any subsequent disciplinary hearing or appeal.

2. Employers can suspend an employee, on full pay, while an investigation is undertaken, although any period of suspension should be as brief as possible and kept under constant review.

3. A decision to suspend an employee should not be an automatic reaction to a disciplinary issue. The employer should consider whether suspension is appropriate in the circumstances, given the consequences for the employee of being out of the workplace, and the potential damage to the employee’s reputation, as thoughtless and unnecessary suspension could be in breach of the implied term of trust and confidence.

4. Suspension should not be used as a disciplinary sanction unless the employer has an express contractual right to do so. Any such power is subject to an implied term that it must be exercised on reasonable grounds. To suspend without authority exposes the employer to claims for breach of contract, which could invalidate post-termination restrictions.

5. If it is determined that the matter should proceed beyond the investigation stage, the employee should be invited, in writing, to a disciplinary hearing, and should be given sufficient time to prepare their case – usually no less than 48 hours. The employee should also be informed of the basis of the allegations and provided with any evidence collected, and of the possible action that could be taken.

6. Where the hearing could result in disciplinary action, the employee has a right to be accompanied by a fellow worker or trade union representative (irrespective of whether the employer recognises any trade union).

7. At the hearing, the employee should be given an opportunity to respond to all the allegations and be allowed to comment on all the evidence collected.

8. After the meeting, the employer should decide what, if any, disciplinary action is appropriate. The employee should be notified of the decision in writing without unreasonable delay.

9. If misconduct or poor performance is established, a dismissal would usually only be appropriate if there have been prior written warnings. Gross misconduct can justify dismissal for a first offence.

10. The employee should be given the right to appeal a disciplinary decision. Any appeal should be heard without delay and not by anyone involved in previous stages of the process. The appeal should be heard by someone more senior than the individual who made the disciplinary decision (where possible).

Stages of Disciplinary Process

Stage 1 – Establish the Facts

We would recommend any investigations of potential disciplinary matters are carried out without unreasonable delay.

This may involve carrying out an investigation with other members within the team/business and will involve holding an investigatory meeting with the employee, prior to proceeding with a disciplinary hearing if appropriate.

An investigation is required to ensure that all the relevant evidence is collated (as this is sent to the employee together with the disciplinary hearing invite letter, if the matter proceeds to a disciplinary hearing).

Stage 2 – Investigation Meeting

The employee does not have a statutory right to be accompanied at an investigation meeting but may request this, and this request will be subject to the organisation’s absolute discretion.

If the employee is suspended during the investigation this should be on full pay and the period of suspension kept to a minimum and constantly under review.  The employee should be notified in writing that they are being suspended and within the letter it should be made clear that suspension is not considered a disciplinary action.

Ordinarily, and in accordance with a company disciplinary policy, the investigation will be carried out by an appropriate senior manager (Investigating Officer).  When the Investigating Officer has completed their investigation, they will recommend whether the matter should proceed to a disciplinary hearing or some other step, though they should not offer an opinion on the level of disciplinary sanction, which can only be determined following any disciplinary hearing.  The employee should be notified of this in writing.

 Stage 3 – Disciplinary Hearing

The invite to a disciplinary hearing should give details of the time, date and venue and advise the employee of their statutory right to be accompanied by a work colleague or trade union official (‘companion’). The hearing should be held without unreasonable delay but allow the employee time to prepare their case.

If the Investigating Officer takes the decision to proceed with a disciplinary hearing, the disciplinary hearing should where possible be chaired by a different person within the organisation who has not been involved in the investigation.

At the disciplinary hearing a note taker should be present to record the proceedings (preferably a note taker should be present at every stage of proceedings, but certainly at disciplinary and appeal hearings).

If the employee’s companion is not available on the date/time proposed, you should postpone the hearing to a time proposed by the employee, providing the alternative time is reasonable and generally not more than 5 working days after the original proposed date.

The companion should be allowed to address the hearing to sum up the employee’s case, respond on behalf of the employee to any views expressed at the meeting, and confer with the employee during the hearing.  The companion does not have the right to respond to questions on the employee’s behalf.

Stage 4 – Determining Appropriate action

Following the disciplinary hearing a decision is made whether disciplinary action (or any other step) is justified, and the employee should be informed in writing of the decision. There is no requirement to confirm the decision immediately at the conclusion of the disciplinary hearing, as there should be some consideration as to the appropriate outcome, even if this follows a brief adjournment of the hearing.

The outcome letter will outline the decision and the basis for this, how long any warning will last (if the decision is reached to issue a warning as a sanction), and the consequence of a further act of misconduct. If the decision is made to dismiss, an explanation for this decision will be required, including reference to the seriousness of the offence, and/or any previous warnings.

If a disciplinary sanction is issued the opportunity for the employee to appeal the decision should be confirmed, along with the requirements in this regard i.e. time limits, person to whom the appeal should be made.

Dismissal

Before proceeding to dismiss an employee in connection with misconduct, employers must first consider:

1. whether the conduct is such that it is incompatible with the employee continuing to perform their duties effectively;
2. whether the conduct has adversely affected the workplace, including the reputation of the business or efficient operation of the workplace;
3. whether the conduct is so serious as to irreparably damage the relationship between the employer and employee; and
4. whether dismissal is the most appropriate disciplinary outcome.

Stage 5 – Appeal

Any appeal should be dealt with by someone who has not been involved in the previous investigation or disciplinary process.

The employee will have the same statutory right to be accompanied at the appeal hearing by a work colleague or trade union official, and again a letter inviting them to the appeal would need to be issued confirming the date, time, venue and their statutory right to be accompanied.

Following the appeal hearing, the employee should then be advised in writing of the decision as soon as possible.

You will need to refer to your disciplinary policy throughout the process, in order to ensure that this is in line with the ACAS Code of Practice, which essentially reflects what is set out above.

If for any reason you do not have a disciplinary policy, you will need to refer to the ACAS Code of Practice on disciplinary and grievance procedures.