Once in a while, you may find acts of misconduct or improper behaviour from your staff. This may lead to an employer needing to follow a fair process to deal with the issue.
A disciplinary procedure allows you to manage issues and outline potential consequences. If you neglect disciplinary procedure steps, you could end up facing compensatory penalties or reputational damages.
In this guide, we'll look at what a disciplinary procedure is, ways to follow the ACAS Code of Practice, and how to manage a fair procedure.
What is a disciplinary procedure?
A disciplinary procedure is a process that helps to deal with a performance, or conduct issue.
The process depends on the issue and whether a formal procedure is needed.
After a discussion or investigation, the employer will hold a disciplinary hearing to decide on suitable action. But this decision is only passed after each party presents their 'side of the story'.
Disciplinary action can include an informal warning that highlights the offence, for wearing the wrong uniform.
But disciplinary procedures aren't only used for poor conduct; they're also used for performance matters, too.
What are the UK laws on fair disciplinary procedures?
When an employee's behaviour becomes unacceptable, you need to address the issue in a fair and lawful manner.
Every employer needs to adhere to ACAS Code of Practice on Disciplinary and Grievance Procedures. The Code of Practice is a governmental guideline that outlines ways to deal with a disciplinary matter either formally or informally.
Your business might have its own disciplinary procedures already. However they should reflect the basic requirements of the ACAS Code of Practice. For example, how to:
- Raise an issue on conduct.
- Deal with repeat offences.
- Carry out an investigation into the matter.
- Inform the employee about the issue.
- Hold a disciplinary hearing.
- Allow employees to appeal any formal disciplinary decisions made.
It's not a legal requirement to follow the Code, but every employer must have a fair procedure in place. Under the Employment Rights Act 1996 (ERA), if fair procedures are neglected, you could be liable for unlawful dismissal by an employment tribunal (ET).
What are the consequences of an unfair disciplinary procedure?
Without a fair procedure in place, you could end up treating employees unfairly or discriminatively. An employee can raise an unfair dismissal claim in their defence.
If there's evidence of gross negligence or gross misconduct, you should initiate disciplinary procedures. This includes starting an investigation, complying with legal rights, and reaching a potential outcome.
For example, the employer could be forced to reinstate the employee to their original job role, or pay them compensation awards (which can be subject to a 25% increase depending on the case).
How to manage a formal disciplinary process
When it comes employee conduct issues, it's best to follow the proper steps. The entire disciplinary process can be complex, time-consuming, and even costly. So, having a structure in place can help protect both employee and business welfare.
A fair and formal process covers five steps:
- The investigation process into the allegation.
- Written communication which outlines the issue.
- A disciplinary hearing to discuss the issue.
- A final decision on appropriate disciplinary action.
- The right to appeal the final verdict or disciplinary action.
Step 1: The investigation process
Every employer should first undertake a disciplinary investigation. The investigation is done to collect facts and evidence relating to the case. This includes what the allegation is, who's involved (or affected), and what further steps need to be taken.
The investigation findings are presented at an investigation meeting where relevant people are present. Each side should share their side of the story and answer questions raised by the opposition. An investigation meeting can include, holding interviews, sharing witness statements, and cross-examining evidence.
Employees can be accompanied at the disciplinary meeting. For example, a colleague, or trade union representative. Remember, they are they to help understand the case/clarify points, and not as legal representatives.
It's good to note that an investigation meeting is different to the disciplinary hearing.
Step 2: Written communication
The next step is notifying the employee about the proceedings and inviting them to a disciplinary hearing. This is usually done through written communication, like a disciplinary letter
The letter should cover:
- The nature of the allegation.
- Provide enough detail about the procedures.
- Outline methods for responding to the letter.
- Include copies of written evidence and statements.
The letter should highlight your intention to hold a disciplinary hearing. At this time you are able to explain the allegation to the employee, along with the potential outcomes Disciplinary sanction should only be confirmed after the hearing.
If the employee's representative isn't available on the hearing date, you must postpone the meeting. Their reasons for postponing must be justified and the new date can be no later than five working days after the original hearing date. However, flexibility is allowed and encouraged.
Step 3: The disciplinary hearing
Once you have completed the first two steps you may hold the disciplinary hearing. At the hearing, the employer should present evidence and accounts relating to the allegation against the accused party.
Every employee needs to be given time to present their case, ask questions, and display their own findings.
Sometimes, new evidence or mitigating circumstances surface during proceedings. The hearing may be adjourned for a future date - allowing time to process the situation. An employee may discuss the case with their representative. However they cannot answer questions or stand as witnesses on the employee’s behalf.
If an employee is repetitively unable due to illness/disability, you should make adjustments to the process.
Step 4: The disciplinary decision
Once all the evidence and accounts have been presented, it's time to pass the disciplinary decision.
The employer should provide the decision in writing to the employee. Here are examples of some disciplinary decisions:
No action
Some forms of conduct are considered minor or have mitigating circumstances that reduce their ‘seriousness’.
Here, you could decide on no further disciplinary action. If this is the case, you'll still need to provide a written record of the verdict. You should also outline potential further action if the conduct happens again.
Verbal warning
Some misconduct can be resolved through a quiet chat in the office. A verbal warning is given when issues aren't extremely serious, but do need to be dealt with.
You can express what actions to take through an informal discussion with the employee. Or, disclose a verbal warning through a formal disciplinary procedure.
Written warning
Whilst verbal warnings need to be documented, they shouldn't be confused with written warnings. These warnings are issued for more serious misconduct or poor performance.
You could issue a first, second, or final written warning to your staff. Which one to give out depends on the issue, how long the warning stands, and what change is required.
You could also present a 'three-strikes' rule, where an employee is let go if they're given a third written warning. However, this can only be actioned through proper termination processes.
Final warning
A final written warning is issued after a serious form of misconduct or a lack of acknowledgment of previous warnings.
These warnings are often used when terminating contracts or implementing a demotion. You can only issue a final warning after the disciplinary investigation has been carried out and written warnings have been issued.
Demotion
If an employee has committed an act of gross misconduct, you may decide on demotion as a form of disciplinary action. Demotion is seen as a reasonable alternative to dismissal, especially when the employee has a substantial length of service.
This procedure must be agreed to through your disciplinary policy and employee contracts. It should highlight any changes to job positions, as well as full pay entitlements.
Dismissal
If an employee's guilty of serious breaches or has committed further misconduct (after multiple warnings), you could decide on dismissal. Dismissal is when you terminate an employee's contract based on misconduct.
The rules on dismissal should be included in every employment contract, company handbook, and disciplinary policy. In cases of gross misconduct, an employer may even decide on actioning a summary dismissal. When you follow through with summary dismissal, employees lose PILON or notice period benefits due to the seriousness of the allegation.
During a dismissal, you must follow fair dismissal procedures. If not you could end up facing a tribunal claim.
Step 5: The right to appeal
Employees may have a right to appeal the decision made at a disciplinary hearing. This might be because they feel the decision is unfair or has been wrongfully passed. An appeal should be requested in writing.
The hearing should not include anyone who wasn’t present at the initial disciplinary hearing. Employees still have the right to be accompanied at the appeal hearing. The final outcome of the appeal should be represented in writing without unreasonable delay.
Get expert advice on disciplinary procedures with Peninsula
No matter what the issue is, every employer needs to have disciplinary proceedings in place. They help ensure that staff know what counts as misconduct - as well as the potential consequences of breaching them.
If you don't act fairly, you could end up paying penalties, reinstating employees, and facing reputational damages.
Peninsula offers expert guidance on disciplinary procedures. Our HR team offers unlimited 24/7 HR employment advice which is available 365 days a year.
Want to find out more? Seek advice from one of our HR consultants. For further information, call our telephone number 0800 028 2420.
