Using the disciplinary process
There are two main areas where a disciplinary process may be used: capability/performance and conduct.
Capability/performance
Capability issues may arise because an employee is unable to perform the work to a satisfactory standard due to inadequate training or another reason. An employer must try to identify the reason and give appropriate support before invoking a formal procedure.
Situations where an individual is unable to do their job because of ill health may also fall into this category and an employee should be dealt with empathetically and offered appropriate support. Employers should ensure they comply with the Equality Act in cases of absence where the individual has a disability or health condition, including the duty to make reasonable adjustments.
Conduct
Employee misconduct could cover a wide range of issues that vary in their level of seriousness, including:
- Continued lateness.
- Failure to follow a reasonable management instruction.
- Abuse of the organisation’s computer system or internet access.
- Bullying behaviour or creating a hostile work environment.
- Theft.
- A criminal offence.
In all cases, an employer should follow their own procedures as well as the Acas Code.
The more serious offences may constitute gross misconduct, which could involve offences such as theft, physical violence or serious insubordination. Although the employer can dismiss an employee with immediate effect for gross misconduct, it’s still important to follow a fair procedure and investigate the alleged offence. There should also be an opportunity for the employee to respond before deciding to dismiss.
Stages of the process
If disciplinary action is to be taken, it should usually have at least three main stages:
- A letter.
- A meeting.
- An appeal.
The employer should always carry out a full and fair investigation to determine the facts and to decide if further action is necessary. Acas has published guidance for those carrying out investigations, and recommends that an investigator should be trained for the role.
Record-keeping
Employers should keep meticulous records of disciplinary action and communication, which will be vital should a case go to an employment tribunal. The type of records to keep include:
- Minutes of all meetings.
- Texts.
- Emails.
- Attendance notes.
- Notes of telephone calls.
- Copies of correspondence.
Handling disciplinary interviews
The employer should train and support all line managers to ensure that they are confident and competent to carry out disciplinary meetings.
An employee or worker (see our Employment status factsheet) is entitled to be accompanied by a work colleague or trade union official at formal disciplinary and grievance interviews. It’s good practice for an employer to offer this at any investigatory meeting.
Key recommendations:
-
Ensure everyone involved in disciplinary processes understands the importance of following the correct procedure; even if the case against an employee seems proven, the individual may still be treated unfairly if the correct procedures aren’t followed.
-
Ensure all the facts are investigated, including information from both the employee and witnesses, consulting the individual’s personal file for relevant information.
-
Ensure the letter inviting the employee to the meeting states why they’ve been asked to attend, outlines evidence the employer intends to rely on and that the employee may have a companion present. The letter should also highlight the potential consequences of the disciplinary process.
-
Give the individual reasonable notice of the meeting, ideally more than 72 hours.
-
Before the meeting, provide appropriate statements from the individuals involved, together with any key information both parties intend to rely on.
-
Make sure another manager can be present to take detailed notes and help conduct the interview.
-
Never pre-judge the outcome of the interview before hearing the employee's perspective.
-
Start the interview by stating the complaint to the employee and referring to appropriate statements from witnesses.
-
Give the employee plenty of opportunity to put forward their side of the story and call any supporting witnesses.
-
Employers can also call witnesses, but they can only be in the room for the relevant part of the interview.
-
Make use of adjournments; always take a break to consider and obtain any additional information before reaching a decision.
-
Communicate the decision in person if possible, give reasons, taking account of any mitigating circumstances, and ensure you give details of how to appeal.
-
Confirm the decision in writing.
Potential outcomes
No action
After the meeting, the employer may decide that no action is necessary, for example if an employee was unclear about what was expected from them and they agree to try to resolve the issue via additional support or counselling.
Warnings
An organisation’s policy should outline exactly which warnings will be given, for example:
- Verbal/oral warning (Acas no longer recommends this stage as part of a formal procedure but, for cases of minor misconduct, this will often be a reasonable method to prevent a problem from escalating).
- First written warning or improvement notice.
- Final written warning.
Employers should specify how long formal disciplinary warnings should stay on an individual’s record. Typical timescales suggested in the Acas non-statutory guidance for the types of warning are:
- First written warning – 6 months.
- Final written warning – 1 year.
It may be appropriate for a warning to continue to be regarded for longer, provided the timescale was specified in the organisation's disciplinary policy from the outset. The time period for warnings to remain current, and the penalties imposed, must be reasonable given the circumstances.
Dismissal
There are currently five potentially fair reasons for dismissal – as set out in our Dismissal procedures factsheet.
Employers need to be sure that any decision to dismiss an employee will be seen as ‘reasonable’ by an employment tribunal. The employer must follow the Acas Code before any dismissal and demonstrate fairness overall, for example by complying with internal procedures, treating employees consistently and carrying out a proper investigation.
If, despite the employer’s efforts, the individual submits a tribunal claim, both parties must attempt to resolve the dispute by early conciliation using Acas or some other means of dispute resolution. The parties could also enter into a settlement agreement. CIPD members can find out more from our unfair dismissal and wrongful dismissal law Q&As.
Maintaining people’s dignity and safeguarding their health and wellbeing
Concern for the health and welfare of people involved in a disciplinary procedure, should be a priority at every stage. This should include access to occupational health assessment where requested or needed.
Suspension should be a matter of last resort, when working relationships have broken down irreparably and after all other reasonable options have been considered. It should be reviewed on an ongoing basis and be time-bound.
If an employer does fairly dismiss an employee, they should still have regard to the individual’s health and wellbeing and the potential impact that the action could have on them. Even where the organisation has carefully followed a thorough process and the dismissal is justifiable and proportionate, it is likely to be a devastating outcome for the individual. The organisation should act with compassion, whatever the circumstances, and ensure that support is available where needed. The individual's dignity should be respected at all times.
