Disciplinary Procedures

What are Disciplinary Procedures?

Disciplinary procedures can often lead to dismissal and it is therefore imperative that a fair procedure is followed.  Failure to follow a procedure at all will always result in a finding of unfair dismissal.

The ACAS Code of Practice on Disciplinary and Grievance Procedures provides practical guidance to employers and employees on carrying out fair disciplinary procedures for misconduct or poor performance.  Employment tribunals will take the Code into account when considering whether an employer acted reasonably. The Tribunal can also apply a 25% uplift to a compensatory award if the ACAS Code is not followed.  

In order for a dismissal to be fair it must fall within one of 5 potentially fair reasons.  These are:

• A reason related to capability;
• A reason related to conduct;
• Redundancy;
• Contravention of legal requirement (for example right to work); and
• Some other substantial reason.

The employer must also have acted reasonably in treating the given reason as sufficient to justify dismissing the employee.  Over time this requirement has been interpreted as including the need to follow a fair procedure before deciding to dismiss.

Misconduct

Depending on the misconduct act, it is recommended that informal discussions be used initially to attempt to resolve matters without the need for formal action.  The employee should be advised that formal action may be commenced if discussions do not prove fruitful.  Informal verbal warnings may be given at this stage.

Investigation

An investigation into disciplinary action is critical if an employer is to comply with the ACAS Code.  The law requires an employer to have a reasonable belief in the employee’s guilt based on a reasonable investigation.

As part of the investigation the employer should meet with the employee to get their version of events.  Such a meeting would not negate the need for a further disciplinary meeting even where an employee admits guilt.  

The level of investigation needs to be reasonable in all the circumstances and the more serious allegation, the more extensive the investigation should be.  Failure to investigate the allegation of misconduct could result in a finding of unfair dismissal. 

In cases of serious misconduct an employer may wish to suspend the employee under investigation.  The employer is expected to apply its mind when considering to suspend an employee including the reasons and whether there is an alternative to suspension. 

Proceeding to disciplinary action

If, following the investigation, the employer considers formal disciplinary action is necessary, they will need to write to the employee to convey the outcome of the investigation and confirm whether there is a disciplinary case to answer and, if so, set out the allegations.  The employee should be invited to a disciplinary meeting at a reasonable time and place and will be given sufficient time to prepare their case, as well as being provided with all the evidence gathered during the investigation. The severity of the allegations, as well as the possible outcome of the meeting should be stated.  

Disciplinary hearings

Where possible, it is important to ensure that the individual holding the disciplinary hearing is not the person who conducted the investigation as their partiality could be questioned.  This may not be practical in smaller organisations.    It is also advisable to have a second person at the meeting to take notes.  The employee should be allowed to be accompanied to the hearing by a fellow worker or a trade union representative.

The employee and their companion should be allowed to raise any questions as necessary and the employee should then be given a reasonable opportunity to present their version of events and any evidence in support.  It may be that some further investigation is also required before a decision can be made.

The Decision

Where the outcome of the disciplinary procedure is dismissal, employers often lose cases where they have not persuaded a tribunal that a dismissal was a fair and reasonable sanction in all the circumstances.  The tribunal will ask whether a reasonable employer would have acted in the same way.

Another outcome of the hearing may be that a warning is issued.  Warnings should advise of the length of time they will remain active and that any further misconduct during that period may result in further disciplinary action.

Whatever the outcome of the process the employee should be given the right to appeal against the decision.  Should the employee appeal, an appeal meeting should be arranged and a more senior (or at least, as senior) manager independent from the original disciplinary process should be appointed to conduct the meeting.  The outcome of the appeal should be confirmed in writing, confirming whether the appeal is dismissed or upheld.

As mentioned above, to avoid a finding of unfair dismissal, the dismissing officer has to ensure a reasonable investigation was carried out, there was a reasonable belief in the employee’s guilt and the dismissal is not outside the band of reasonable responses. We recommend legal advice is sought when considering to invoke your disciplinary process particularly if the allegations are of serious nature or the employee has protected characteristics for example is disabled.