Employment tribunal claims are on the rise – the number of claims have gone up by a staggering 13% in the 2023/2024 year, with the average award for an unfair dismissal claim being £13,749.
What’s more, it’s expected that the claims made to a tribunal will increase significantly over the next couple of years, following the introduction of the Labour government’s Employment Rights Bill.
But don’t worry, help is at hand. In this guide, we’ll help you understand the purpose of a disciplinary procedure, navigate the key steps of disciplinary procedure, look at capability verses conduct, informal and formal resolutions, and all whilst showing you how to evidence you’ve followed an objective and fair process. We’ll also give you an overview of an employee’s right to be accompanied and guide you on the right time to involve HR expertise.
Is it really that important to follow a fair disciplinary process?
You may be sitting there thinking… “why does any of this matter? If any employee has been badly behaved, surely, I can just get rid of them?” But it’s not quite as simple as that. There are plenty of real-life examples where an employee has taken their employer to Employment Tribunal for failing to follow a disciplinary procedure… and won.
Take a look at the case of Kane v Debmat Surfacing Ltd – an Employment Tribunal held that a driver who was sacked after he was spotted drinking in a pub while he was off sick was unfairly dismissed because of procedural issues. The key issue being that Debmat Surfacing Ltd did not gather enough information to make an informed decision, instead relying on assumptions rather than the facts.
So how can you protect yourself as an employer and reassure your employees that you’re following a fair process?
Disciplinary procedure and the law: Common Pitfalls
Employers who fail to follow a fair and reasonable disciplinary procedure when handling cases of misconduct (and gross misconduct) risk exposing themselves to expensive legal claims at an Employment Tribunal. But what are the common pitfalls that can land an employer in hot water?
- Not following a disciplinary procedure – as a minimum you should be following the Acas Code of Practice on disciplinary procedures.
- Not warning the employee of the possible consequences of disciplinary action before the meeting.
- Not outlining the allegations against the employee.
- Failing to provide the employee with all the evidence in advance of the disciplinary hearing.
- Failing to ensure the sanction is ‘reasonable’ in the circumstances.
- Taking expired disciplinary warnings into account when deciding on the appropriate disciplinary action for a current case.
- Not giving the right to be accompanied at a disciplinary hearing.
- Relying on one source or witness’ evidence, without anything further to corroborate it.
- Not giving the opportunity for the employee to appeal the disciplinary outcome.
- Failing to keep adequate records.
- Unexplained delays in the disciplinary process.
- Not having separate people involved in the disciplinary investigation process, disciplinary hearing, and disciplinary appeal hearing.
Now we know the pitfalls, let’s look at what can be done to ensure a fair and reasonable disciplinary procedure in the workplace.
Disciplinary Process: Step by Step
1. Identify the issue – capability vs conduct
Firstly, it’s important to consider whether you’re following the correct process – often there will be different one’s at play depending on whether the matter is related to ‘misconduct’ or ‘capability’.
Generally, it’s considered that misconduct is related to unacceptable or inappropriate behaviour, which is looked at in light of the disciplinary procedure.
Capability is considered as an employee’s inability to perform the job properly (poor performance), which is often looked at in light of the performance improvement procedure. You can find out more about this, here.
Once you’re satisfied that the matter at hand is conduct-related, you’ll need to consider how serious it is – whether it is considered general misconduct or gross misconduct – remembering that this will impact the level of potential consequence should the matter progress to a disciplinary hearing. Tip: a key step here is to make sure you warn the employee of the possible consequences of disciplinary action before the meeting takes place.
General misconduct
General misconduct typically refers to behaviour that is inconsistent with employee obligations or duties, breaches of company policies or procedures, or generally unacceptable on improper behaviour. For example:
- Minor breaches of company policies and procedures
- Unauthorised use of company property
- Poor attendance and timekeeping
- Being careless when carrying out work duties
- Wasting time during the contracted working hours
- Smoking in areas where smoking is not allowed.
Gross misconduct
Gross misconduct, on the other hand, is described by Acas as acts that are “very serious or have very serious effects”. The degree of severity or potential impact is considered higher than for general misconduct. For example:
- Bullying or physical violence
- Fraud, theft, or any act of dishonesty
- Altering records, such as sales records
- Serious negligence or carelessness
- Serious health and safety breaches
- Serious and intentional damage to company property
- Conduct that brings the company name into disrepute.
2. When is suspension appropriate?
You might think that it’s standard practice to suspend an employee who is subject to a disciplinary investigation to ensure nothing is tampered with or the investigation hindered in any way. But, in the eyes of the law, suspension should always be a last resort and done as a neutral act – i.e., done without making assumptions about an employee’s guilt.
So, before you decide on whether to suspend, you should try to speak with the employee and genuinely consider all relevant circumstances and reasonable alternatives to suspension, such as transferring an employee to another part of the business or offering the opportunity to undertake different duties.
This will help you to evidence there were reasonable grounds to do so if challenged later down the line. You can read our helpful guide on suspension, here.
3. Investigation – establishing the facts
Before deciding upon what, if any, disciplinary action might be appropriate, you’ll need to investigate the alleged misconduct. This is essentially a process of obtaining as much information as possible to establish the facts of the case. Remember, everything collated at this stage will form the evidence used at the next stage of the process – the disciplinary hearing.
Preparation is key here. Planning in advance what you need to get from each witness is a crucial step. Really think about the disciplinary investigation questions you want to ask:
- What might need to be double-checked or sense-checked?
- Are they providing opinion or fact?
- Is there more than one witness providing a corroborating account?
- Are any of the accounts exaggerated due to previous working relationships – good or bad?
You’ll also need to consider if there are any documents that can help to substantiate (or otherwise) the allegations – policies, written instructions, emails, meeting minutes, etc.
Once the disciplinary investigation process is concluded, it’s worth reviewing everything again to make sure there are no gaps in available information and to objectively review the case to consider if it needs to be escalated to a disciplinary hearing.
4. Informal or formal resolution
At any stage during the disciplinary procedure (including following the investigation process), if it’s decided that no further action is necessary, the employee should be informed as soon as possible.
However, if there is a need for further action, it may fall into one of two categories:
Informal
For relatively small, non-serious conduct issues, an informal resolution might be appropriate. This is usually just having a conversation with the employee to let them know their behaviour or conduct has fallen below the standards expected.
Even though it’s informal, a written record should be kept for future reference and usually, the employee would be given a ‘Letter of Concern’ as a summary of the discussion.
Formal
But when is a formal disciplinary procedure the right way to go? If an informal resolution isn’t appropriate or hasn’t worked, it might be necessary to issue a formal warning. The level of warning should be proportionate to the concern, for example:
- A first written warning might be appropriate as a first step.
- A final written warning might be appropriate if the employee repeats a behaviour or misconduct concern, or if the concern is more serious. A concern is likely to be considered more serious, if, for example, the misconduct could cause serious harm to the business (think, gross misconduct).
- Dismissal might be appropriate if an employee has committed an act of gross misconduct or has previously been issued with a final written warning and then repeated an act of misconduct. Alternatives to dismissal (e.g., demotion) may also be considered at this stage.
5. Disciplinary hearings
If it’s decided that, following the investigation stage, there is a ‘case to answer’, a disciplinary hearing should be held. This should be arranged as quickly as possible following the investigation, whilst still giving the employee the opportunity to prepare for the meeting. Usually, a few days’ notice is considered reasonable.
The employee should be told in a disciplinary invite letter:
- What the alleged misconduct is.
- The evidence obtained during the investigation phase.
- Any other information to be discussed.
- The date, time, and location of the hearing.
- They have the right to accompaniment (and what this means).
- The possible outcome of the hearing.
A Hearing Manager should be appointed, who is, ideally, someone different from the person leading the investigation stage. This helps to bring an independent perspective to the meeting, preventing prejudice or bias from creeping in.
During the hearing, both parties should explain their perspective and go through the available evidence. The employee should be given the opportunity to set out their position, answer the allegations, ask questions, and present their own evidence (although, it’s expected this would have been shared in advance by the employee).
Notes should be taken as a record of the meeting and a copy given to the employee.
A decision shouldn’t be made until all the facts of the case have been carefully considered. The Hearing Manager will also need to consider what is fair and reasonable in the circumstances, and sense-check their outcome against similar historical cases to ensure consistency of approach.
6. Appeals
If the employee doesn’t agree with the formal sanction issued (written warnings or dismissal), they should be offered the right to appeal the decision.
The employee can only appeal if they believe the outcome was too severe, or if they feel any part of the disciplinary procedure was wrong or unfair in anyway. For example, if the employee feels the investigation didn’t source enough evidence.
An appeal hearing should be arranged in a reasonable timeframe (and in accordance with any timescales stated in your Disciplinary Policy) and an Appeal Hearing Manager nominated who has not been involved in any previous stage of the disciplinary procedure. This person must also be able to make the final decision.
It might be that further investigation is necessary before the Appeal Hearing Manager can make their final decision, which may be that the original decision was fair and still stands, or that the original decision needs changing.
Communication
Disciplinary procedures can be stressful for all parties, but particularly the employee who is alleged to have committed an act of misconduct. So, it’s imperative that clear, regular, confidential communication takes place to minimise the stress and prevent misunderstandings.
Effective communication means robustly preparing for any meetings held under the procedure (think scripts, forward planning, and thorough review and understanding of all company policies, procedures, and evidence), choosing the right time and place for the conversation, using constructive tone and language, and actively listening to the employee (after all, communication is a two-way process).
But it doesn’t stop at the meeting; afterwards, there should be prompt follow up in writing – either summarising the disciplinary action and/or summarising the main points, expectations and other matters agreed upon in the meeting.
Record keeping in the disciplinary process
In line with Acas’ Code of Practice on disciplinaries and grievances at work, employers are advised to keep a written record of:
- The complaint/concerns against the employee
- The employee’s defence
- The investigation findings and actions taken (including the reason for the actions)
- Whether an appeal was lodged.
- The outcome of the appeal.
- Any grievances raised during the disciplinary procedure.
- Any subsequent developments.
- Notes of any formal meetings held (copies of which should also be given to the employee).
All records relating to the disciplinary procedure should be treated as confidential and kept only for as long as necessary in accordance with the data protection regulations.
Right to accompaniment
Employees have the right to be accompanied by a ‘companion’ to any formal meeting called under the disciplinary procedure – whether that is the disciplinary hearing or the appeal hearing. This right doesn’t extend to investigation meetings. The companion may be a work colleague, trade union representative, or trade union official.
There are some exceptions to this; employers must make reasonable adjustments for disabled employees. This might mean allowing someone who isn’t a work colleague, trade union representative, or trade union official to attend the meeting. For example, a support worker or family member who has knowledge of the disability might be permitted to attend in this instance.
The companion’s role is simple – they can help the employee to set out their case, talk with the employee during the hearing, take notes, and sum up the employee’s case at the end of the meeting. However, they cannot answer questions put directly to the employee or prevent you from asking questions or putting your comments or points across.
The role of people professionals
HR play a pivotal role in all people processes, but particularly in the complex landscape of disciplinary procedures in the workplace. That’s why it’s important to involve them as soon as you identify a potential misconduct issue.
The primary role of HR in disciplinary procedures is to provide advice, guidance, and support to both employee and line manager alike. They also help to ensure consistency in the application of internal policies and practices, all whilst equipping decision-maker with the essential skills and insights to realise the potential weight of their decision, regardless of which disciplinary step they’re at.
“It’s inevitable that disciplinary situations will arise, so it’s really important employers know how to handle them fairly, consistently, and within the law. Getting it wrong can have serious consequences for employers, including costly unfair dismissal claims.
Following a fair and well-documented process with a clear rationale for any disciplinary action will also likely help mitigate potential allegations of discrimination from employees”.
Emily Hunter, Head of Employee Relations
How we can help
At Fitzgerald, we can help make sure you’re dealing with misconduct in the right way. Our experts can help with everything from developing robust disciplinary procedures to leading investigations.
Whether it’s writing a Disciplinary Policy, drafting a disciplinary invite letter, or answering all your disciplinary investigation questions, you can book a free consultation or call us on 0330 223 5253 to see how we can help.
Further reading
- How to handle a disciplinary issue
- Employee suspension – is it a fair and neutral act?
- Natural justice and disciplinary proceedings
Key takeaways for Disciplinary Procedures
Consistency is key: When handling any misconduct matter, you should ensure there is a fair and consistent approach across the organisation, following the Acas Code of Practice as a baseline position.
Communicate well: Even the hard stuff. Disciplinary procedures are incredibly stressful, so regular, thoughtful, and clear communication helps to minimise the impact on the individual(s) involved.
Document everything: Make sure there’s a written record of everything relied upon for decision-making. From the meeting notes to the investigation findings, and actions taken. This helps to evidence a fair process and provides a robust defence in the event of further action.
Companionship matters: For any formal meetings held under the disciplinary procedure, employees have the right to be accompanied by a work colleague or trade union representative/official. But if the employee has a disability, it’s likely to be considered a reasonable adjustment to allow someone else to attend (like a family member or support worker).
Ensure independence: It’s important to ensure independence throughout the process. It’s recommended that there are different people leading the investigation, hearing, and appeal meeting, to ensure bias doesn’t creep in.
