In a nutshell
A disciplinary process allows an employer to help improve an employee's misconduct or poor performance: it is not to be viewed as a punishment but to encourage improvement so that the employee understands and meets the required standards. Disciplinary issues may arise because of misconduct or poor performance. The latter may be dealt with under a separate capability procedure while other issues such as bullying may also be dealt with under separate policies and procedures. Employers should have a written disciplinary policy and procedure in place to ensure that employees are aware of and understand what constitutes acceptable behaviour and standards of work within the workplace.
Disciplinary issues may also arise as a 'general breach' for example poor behaviour in the workplace such as lateness or may be 'gross misconduct' such as fraud, theft or violence. Both of these areas may be referenced within a staff handbook with specific examples detailed.
In the cases of unsatisfactory performance or minor misconduct, these may be dealt with informally. If, however, they are of a more serious nature, the employer may have to move to a formal process which means instigating the disciplinary procedure.
There must be no bias or discrimination within the disciplinary process and written records and documentation should be kept throughout. These will provide a record of the investigation and the outcome and provides evidence to show a fair procedure. This is key should the employee decide to take further action for example, if he/she is dismissed they may consider a claim through the tribunal system. In this case, the employer will need to respond and put forward evidence – the records would be evidence.
If you don’t have the capacity to deal with a disciplinary issue internally, external providers may be used, such as HR consultants, or free advice can be sought from Acas. Where there is capacity, an internal manager can investigate or mediate.
Where appropriate, you may decide to suspend the employee on full pay pending the investigation. This may only happen in certain circumstances, must be justified and there should be a clause in the employment contract stating that this is an option. This may occur, for example, when an employee has been accused of bullying – the decision may be taken to suspend as the working relationships with colleagues may be difficult.
The disciplinary process must be fair and transparent and, where the employer does not have a written policy and procedure, it is advisable to follow the Acas Code of Practice. This Code is recognised by the tribunals as the best practice way of handling a disciplinary situation and can be used alongside the ACAS guide 'Discipline and grievances at work'.
Key steps to managing this issue
1. Establish the facts by investigating
The facts should be established without unreasonable delay. This may include holding an investigatory meeting with the employee who is under investigation. A letter of invitation should be sent to the employee and, within that letter and at the meeting, it should be made clear to the employee that the investigatory meeting is just that and is a fact-finding meeting.
It may be decided immediately that this can be resolved informally (see below).
The employee may consider that the employee should be suspended, on full pay, pending an investigation. This may occur, for example, where there is an accusation of bullying against a colleague or where there is an accusation of fraud or theft. The period of suspension should be kept as short as possible and it should be made clear to the employee that this is not disciplinary action itself.
The investigation may also include:
- Interviewing other employees and taking witness statements. For example, if they have witnessed an event.
- Other investigatory evidence. For example, if an employee has fallen asleep during working hours and they say it is because the room is too hot and the ventilation is inadequate, the evidence may include heat readings of that room over a 24 hour period to verify compliance with the Health and Safety Executive recommendations or photographic or floor plan evidence of the ventilation. At the investigatory stage the employee has no statutory right to view evidence already gathered, or to be accompanied. However, with regard to both, some company procedures allow evidence to be shared at the investigatory stage and allow the employee to be accompanied.
The result of an investigatory meeting may find that:
- no further action needs to be taken
- the matter warrants informal action
- further investigation is required
- the employee should be invited to a disciplinary hearing
2. If the solution is informal, notify the employee and close the case
In this case, the appropriate action should be taken: for example, it may be that the employee needs a development plan to help them perform to the required level, or another member of staff thought they acting inappropriately towards them in terms of making a joke but, in fact, there was a misunderstanding.
In any event, you should write to the employee outlining what has taken place, the solution and that the matter is closed but should there be a further occurrence this may lead to disciplinary action. A copy of this letter, along with other written documents, should be kept on the employee's HR file.
3. If formal action is required, notify the employee
Where, following an investigation, it is decided that formal action needs to be taken, you should write to the employee inviting him/her to a disciplinary hearing. The letter should include:
- Clarity that it is a disciplinary hearing ie to hear and consider what the employee has to say.
- A record of the alleged misconduct or poor performance.
- A list and copies of the investigatory evidence.
- The time, place and who will be in attendance and their roles.
- An outline of the right to be accompanied by a work colleague or a trade union representative or an official employed by a trade union.
- The possible consequences, including dismissal.
- The option of any reasonable adjustment should the employee or companion have a disability. For example, a mobility issue may require a reasonable adjustment of where the hearing is held and the type of chair provided.
- State whether the employer, with the employee's permission, may record the meeting.
- A copy of the company's disciplinary policy and procedure.
4. Meet with the employee for a disciplinary hearing and allow the employee to be accompanied
The employee should be given reasonable preparation time and the hearing should be held without unreasonable delay. There is no definition of what reasonable preparation time is and you may need to make a judgement on this depending on the complexity and seriousness of the case. Your procedure may outline the timing as a guideline only.
Attendees will vary depending on the size of the company. However, ideally the following should attend:
- the manager running the investigation and/or meeting
- an HR representative
- a note-taker
- the employee
- the companion
If you do not have capacity for these people to attend, it may only be the manager running the meeting and the employee. In this case, the employer, as outlined above, with the employee's permission may record the meeting: the employee should be provided with a copy of the recording and a transcript.
Where the employee is being accompanied, the employee should inform the employer of who the companion is and their status ie worker or trade union official. If an employee is approached to be a companion, they can decline if they do not wish to the role. The employee and companion both should make every effort to attend. Where it is not possible for the companion to attend, the employee should inform the employer and the latter should postpone the original date but must ensure that the alternative date is reasonable and not more than five working days after the original date. Where the employee or companion persist in not attending, the employer may make a decision based on the available evidence.
The employer would not usually communicate with the companion, this is a role for the employee. However, if the companion, particularly if they are a fellow employee, wishes to have a discussion with the employer, then they may contact the employer. For example, they may wish to ask questions about the process.
The companion, on behalf of the employee, can address the meeting, sum-up the employee's case, respond on his/her behalf, and confer with the employee. No other person may accompany the employee other than a work colleague or a trade union representative or an official employed by a trade union: should the employee request a family member or friend accompany them, the employer can refuse.
At the meeting:
- Explain the complaint.
- Explain how the meeting will run.
- Acknowledge whether the employee is accompanied or not; where it is the former, ensure the companion understands their role.
- Go through the evidence.
- Let the employee set-out their case, present any further evidence, and ask questions as well as answer any of the employer's questions about the allegations.
- Adjourn (see below).
- Inform employee of the decision or next steps (see below).
5. Adjourn the meeting
When all areas have been discussed, the chair may adjourn the meeting. The adjournment should provide time to:
- make a decision, or
- determine whether there should be further investigation, or
- tell the employee that further consideration needs to be given to all the evidence and that the employer will be writing to the employee in the next five working days. This timeframe is dependent on the employer's policy and procedure.
6. Decide on appropriate action
Decide on the appropriate action and inform the employee in writing. Consideration must be made of:
- all the evidence
- the seriousness of the conduct or poor performance
You must be able to justify the decision.
Where conduct or performance is unsatisfactory, a written warning may be given. Where the employee does not meet the requirements of improvement within the actions' timeframe, for example, three months, then this may lead to a final written warning.
Where the conduct or poor performance is serious, this may warrant moving directly to a final written warning or, in some cases dismissal.
The employee must be informed of how long the warning or other sanction will be in place and further action should improvements not occur. The required improvements should be clearly set-out.
Disciplinary sanctions may include:
- oral warning
- written warning
- final written warning
- summary dismissal (immediate with no notice)
- reduced salary
Disciplinary sanctions may be on record for disciplinary purposes as follows:
- oral warning for 12 months
- written warning for 12 months
- final written warning for 18 months
The decision to dismiss may only be taken by the manager who has that authority. This should be clear within the your policy and procedure. The employee must be informed of:
- the reasons for the dismissal
- the date the employment ceases
- the notice period unless it is summary dismissal
- the right to appeal.
Where summary dismissal is the sanction, this is for conduct that is deemed gross misconduct. Examples of gross misconduct may include the following:
- Engaging in criminal conduct or acts of violence, or making threats of violence toward anyone on company premises or when representing the company; fighting or provoking a fight on the company's property or negligent damage to property.
- Engaging in an act of sabotage; willfully or with gross negligence causing the destruction or damage of company property, or the property of fellow employees, owners, service users or visitors in any manner.
- Removal of any company property, including documents and any database(s), from the premises without prior permission from management; unauthorised use of company equipment or property for personal reasons; using company equipment for profit.
7. Write to the employee including their right to appeal
Once the decision has been made, you should write to the employee outlining the findings and conclusions including any sanctions and the right to appeal.
Where there is more than one allegation, each should be dealt with in turn and an overall conclusion should be given.
The right to appeal should include:
- How to appeal – in writing.
- Who to appeal to – usually the manager who has dealt with the process. He/she will pass the appeal request to another manager dealing with the appeal. Where the company does not have the capacity as there is no other manager, then this may be contracted out to a third party, for example, an HR consultant. This will ensure impartiality.
- How many days in which they have to appeal from the date of the findings letter.
- The reasons for the employee's appeal.
8. The appeal
Where the employee appeals, the appeal hearing should be heard without undue delay.
The appeal hearing manager should write to the employee confirming:
- date, time and place of the hearing
- who will be in attendance
- the statutory right to be accompanied
- the decision made is final and there is no other formal internal recourse
The role of the companion remains the same as for the disciplinary hearing.
Following the appeal hearing, you should write to the employee with the decision. This is usually done within 10 working days of the hearing.
Tools and resources
Use the disciplinary policy key elements checklist to help you start to create or update your disciplinary policy and download the process checklist to help you follow a fair process.
- Acas Code of Practice on Discipline and Grievance
- Acas guide to conducting workplace investigations
- CIPD resources on discipline and grievance
- FSB guide to disciplinary procedures for start-ups
- FSB guide to disciplinary procedures
- Gov.UK advice on taking disciplinary action against an employee
- Template documents from Acas for dealing with disciplinary process
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