Disciplinary Procedure – Key points for Employers

A Disciplinary Procedure is a framework for managers to use to maintain satisfactory standards of conduct and, where necessary, encourage improvement and/or issue formal warnings.  A disciplinary procedure generally applies to all employees, regardless of length of service but does not apply to workers or self-employed contractors.  If an employer does not follow its disciplinary procedure, an Employment Tribunal can make a finding of unfair dismissal, even where the employer had a fair reason to dismiss an employee. Notwithstanding this, it may not be necessary to follow the disciplinary procedure when managing the behaviour of an employee who has less than two years’ continuous service because such employees generally cannot bring a claim for unfair dismissal. This will always be fact specific and accordingly, employers must take further advice before making such decision.

Prior to convening a disciplinary hearing, it will almost always be appropriate to conduct an investigation into the allegations of misconduct.

An employer’s disciplinary procedure should always comply with the ACAS statutory code of practice on disciplinary and grievance procedures.

Key features of an investigation procedure include:

• All meetings, notes or recordings will be kept confidential by all parties.
• Investigations will be undertaken to establish a fair and balanced view of all facts relating to the allegations.
• Timescales for investigations will depend on the nature of the allegations, which may involve taking statements from the employee in question and any other witnesses.
• Investigation interviews are for fact finding and there is no right to be accompanied however, if someone has a relevant disability or difficulty understanding English, then it may be appropriate to allow a companion.
• Suspension of an employee whilst an investigation is being carried out may be required.  In such circumstances, the employee will not be required to attend work but will receive their full basic salary and contractual benefits.  Suspension does not imply that any decision has been made about the allegations.
• Following the investigation, and if grounds for disciplinary action are established,  the employee will be required to attend a disciplinary hearing.

Key features of a disciplinary hearing include:

• The employee will receive written confirmation of the allegations against them and relevant information and/or documents gathered during the investigation procedure including any witness statements.
• Employees have the right to be accompanied to a disciplinary hearing and any subsequent appeal hearing. They have a right to postpone the hearing if their companion is not available on the date set for the hearing.
• Failure to attend a disciplinary hearing without good reason may, in itself, be treated as misconduct and if an employee repeatedly fails to attend a disciplinary hearing, a decision may be taken based on the information the employer has.
• During the disciplinary hearing, the employer will go through the various allegations against the employee and provide the evidence that it has gathered.  The employee will have the opportunity to respond and present their own evidence.
• The employee’s companion, where applicable, may confer with the employee and make representations to the employer but will not be permitted to answer question on behalf of the employee.
• The employee may ask for relevant witnesses to attend during the disciplinary hearing,  ask them questions and respond to the information they provide.
• It may be appropriate, e.g., if new points arise during the hearing, to adjourn the hearing in order to carry out further investigations.

Sanctions:

After a disciplinary hearing, the person chairing it will need to make a decision and, if the allegation(s) is/are upheld, decide what (if any) sanction is appropriate with regard to the seriousness of the case, including any mitigating circumstances. The standard sanctions available are set out below.

• Stage 1 – First written warning (normally remaining live on an employee’s personnel file for 6 months)
• Stage 2 – Final written warning (normally remaining live on an employee’s personnel file for 12 months)
• Stage 3 – Dismissal In some cases, there will be alternatives to dismissal e.g., demotion to a different role.

Appeal:

Finally, employees must be given a right to appeal any formal disciplinary sanction issued.

• Employees are normally given 5 to 7 days to appeal the outcome.
• Once the outcome of the appeal has been decided, there is no further right of appeal.

As mentioned earlier, if the above process is not followed and an employee brings a claim in the Employment Tribunal,  a Judge may determine that the employee was unfairly dismissed (even if they were dismissed for a fair reason) and award compensation. 

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If you need any further help, guidance or template letters in connection with a disciplinary procedure, please contact Heather Love.