A disciplinary procedure is the formal process an employer follows when an employee’s conduct or performance does not meet the required standard. Following a fair and consistent procedure is essential: it protects the employee by ensuring they know what the concern is and have a chance to respond, and it protects the employer by reducing the risk of an unfair dismissal claim. Employers must follow the Acas Code of Practice on disciplinary and grievance procedures. Failing to do so can result in an employment tribunal increasing any compensation award by up to 25 per cent.
Step 1: Investigate
Before raising a formal disciplinary matter, the employer should investigate. Investigation means gathering the facts: what happened, when, and what evidence supports the allegation. This is not a criminal inquiry; the aim is to establish whether the employee has done what is alleged and whether there is a reasonable explanation.
During an investigation, the employer should:
- speak to the employee (who has the right to remain silent, but silence can count against them later if the matter goes to a hearing)
- speak to witnesses, if any
- gather documents or records (emails, performance data, timesheets, CCTV footage if relevant and proportionate)
- keep records of what was said and discovered
The investigation should be thorough but proportionate. An investigation into an allegation of theft requires more rigour than an investigation into a minor breach of uniform policy. The employee should be told what the investigation is about and given a reasonable opportunity to respond to the allegations before a formal process begins.
Step 2: Letter inviting to a disciplinary hearing
Once the investigation is complete and the employer has decided there is a case to answer, the employee should receive a written letter. This letter must:
- set out the alleged misconduct or underperformance in detail
- refer to the relevant policy or rule that is said to have been broken
- state the possible outcomes (for example, a warning, suspension, or dismissal)
- say when and where the hearing will be held
- give at least five working days’ notice before the hearing
- explain the employee’s right to be accompanied (see below)
- state who will be present at the hearing (usually the employer and the employee, and the employer’s representative, if any)
- explain what will happen if the employee does not attend
Step 3: The right to be accompanied
Employees have the right to be accompanied at a disciplinary hearing by a companion. The companion can be a colleague, a union representative, or (if the employee is a union member) a union official. The companion can help the employee make their case and offer support, but usually cannot act as a lawyer and cannot conduct the hearing on the employee’s behalf.
If the employee’s chosen companion is not available on the proposed date, the employer should offer a reasonable alternative date (within five working days) if possible. The employee must notify the employer in advance who will accompany them.
Step 4: The disciplinary hearing
The disciplinary hearing is where the evidence is heard and discussed. At the hearing:
- the employer (or the employer’s representative) explains the allegations and presents the evidence
- the employee is given the opportunity to respond, explain their actions, and put forward their case
- the employer and employee can ask questions of each other and any witnesses who attend
- the companion can ask questions and advise the employee
The hearing should be conducted fairly and without bias. The person conducting the hearing should be someone who was not involved in the investigation, if possible. The atmosphere should be professional but not oppressive. The aim is to establish the facts and decide whether the employee has done what is alleged.
At the end of the hearing, tell the employee that the employer will consider the evidence and inform them of the decision in writing, typically within a few days (usually no more than five working days).
Step 5: Decision and possible outcomes
After considering the evidence from the hearing, the employer must decide whether to take action and, if so, what action.
Possible outcomes include:
No action. The allegation was not proven or there is a reasonable explanation. The employee is told in writing, and the matter is closed.
Informal action. If the breach is minor and this is the first occurrence, an informal chat may be sufficient. This is not a disciplinary warning but a reminder of expected standards.
A formal warning. If the employee has breached a rule or policy but dismissal is not justified, the employer may issue a written warning. The warning should:
- describe what was wrong
- explain what the employee must do to put it right
- say how long the warning will remain on the employee’s file (typically 6-12 months)
- state that further misconduct within that period may lead to a final written warning or dismissal
A final written warning. This is issued if the employee has committed another breach during the period of a previous warning or if the breach is serious. It follows the same format as a formal warning but makes clear that further misconduct is likely to result in dismissal.
Dismissal. If the breach is very serious (gross misconduct) or if previous warnings have not led to improvement, dismissal may be justified. Examples of gross misconduct include theft, violence, deliberate disobedience of a lawful instruction, or gross negligence.
The employer must notify the employee of the decision in writing, explaining the reasons and stating the effective date of the outcome.
Step 6: Appeal
Employees have the right to appeal against a disciplinary decision. The employer should make clear in the outcome letter how and within what timeframe an appeal can be lodged (for example, within 10 working days). An appeal should be heard by someone senior to the person who made the original decision. At an appeal hearing, the employee can present new evidence or challenge the original findings. The employee again has the right to be accompanied.
After considering the appeal, the employer must notify the employee of the final decision in writing.
Following the Acas Code of Practice
The Acas Code of Practice sets out the minimum standards for discipline and grievance procedures. The Code does not have the force of law, but employment tribunals must take it into account when considering whether an employer has acted fairly. If an employer has not followed the Code, a tribunal can increase a compensation award by up to 25 per cent. Conversely, if an employer has followed the Code carefully, this strengthens the case for fair dismissal.
Key principles from the Code are: act in a timely manner, investigate thoroughly, give the employee notice of allegations and a full opportunity to respond, allow the employee to be accompanied, listen to the employee’s case, keep records, and allow an appeal.
Key points
- Always investigate first to establish the facts before raising a formal disciplinary issue.
- Follow a fair and consistent procedure: letter, hearing, decision, appeal.
- Give the employee adequate notice of the hearing, time to prepare, and the right to be accompanied.
- Ensure the person conducting the hearing has not been involved in the investigation.
- Allow an appeal and ensure it is heard by someone senior to the original decision-maker.
- Following the Acas Code of Practice is essential; failure to do so can result in a 25 per cent uplift in compensation if a tribunal finds the dismissal was unfair.
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