An employer, can commence formal disciplinary action against an employee if they have concerns about their work, conduct or absence. Although it is not mandatory, in some instances it is a good idea to try and raise the matter informally with the employee before taking any formal disciplinary action or decision to dismiss.
A Disciplinary Procedure sets out how an employer should deal with disciplinary issues.
How disciplinary procedures work
A Disciplinary Procedure should be in writing, and be readily accessible for all staff.
It should set out what type of performance and behaviour might lead to disciplinary action and what action an employer can take. It should also include either the name of the individual or a specific role within the business that the employee can speak to or write to in the event that they do not agree with the disciplinary decision.
A Disciplinary Procedure should include the following steps as a minimum;
- A letter setting out the conduct / performance issue
- A meeting to discuss the issue
- A disciplinary decision
- An opportunity to appeal the decision
Employers should follow a full and fair procedure in line with the ACAS Code for any discipline or grievance case. The procedure followed will be taken into account if the case reaches an Employment Tribunal and if an employer has not followed a fair procedure in line with the ACAS Code and the employee is successful, they may receive a larger pay out.
Disciplinary procedures and employment contracts.
An employer can also put their disciplinary procedures in the employment contract. If they do so and then do not follow the procedure, the employee could bring a claim for breach of contract.
When there is a potential disciplinary, and as part of a fair procedure, the employer should find out all they reasonably can about the issue. This is referred to a an ‘investigation’. The purpose of the investigation is to establish if there is a case to answer. It also ensures that everyone if treated fairly and that relevant evidence that both supports and undermines the issue is gathered so a decision can be made as to whether the issue needs to be;
- Dealt with formally at a disciplinary hearing
- Dealt with informally initially
- Dropped; where there is not enough evidence to proceed or where there the evidence shows there is no issue to answer
Where an investigation takes place, this should start as soon as possible. This is because people may remember a situation or incident more clearly the earlier that they are asked about it.
Wherever possible and to keep things as fair as possible, the employer should appoint someone who is not involved in the case to carry out the investigation. In smaller businesses, this may not always be possible.
As part of the investigation process the employer may need to speak to the employee or co-workers, there is no right to be accompanied at these meetings however, an employer may want to consider offering this. Those individuals that can accompany are discussed below.
An employer should not take any disciplinary action before a disciplinary meeting has been held and before giving the employee an opportunity to discuss the issue and set out their stance.
The disciplinary meeting which is also sometimes referred to as a ‘hearing’ should be at a reasonable time and place and an employer should also give an employee reasonable notice of the meeting, ideally 48 hours’ notice or whatever notice the disciplinary policy states.
During the hearing, an employer should explain the issue that has been discovered concerning the employee, go through the evidence that has been gathered and give the employee a chance to explain their version of events.
An employer should only discuss the issue/s that the employee is aware of in advance of the meeting and as set out in the invite letter. Should any new issues or facts come to light during the hearing, or the employer considers that they need to obtain further information pertaining to additional information obtained at the meeting an employer should adjourn the meeting and rearrange another meeting for a later date.
An employee has the right to be accompanied at the disciplinary hearing by any of the following;
- A colleague
- A trade union representative
- A trade union official
The employer must inform the employee of this right and the employee must confirm, in advance of the meeting, the identity of the companion.
The companion can present and/or sum up the employees case and speak to the employee during the hearing but they cannot answer questions on behalf of the employee. The companion should not be disciplined for attending in support.
Following the hearing, the employer will deliver the outcome to the employee. The employer may decide to hold a further meeting to deliver the outcome or may deliver it in writing. If the employer holds another meeting, the outcome should be confirmed in writing.
The outcome might be:
- No action
- Written warning
- Final warning
- Anything else that could resolve the problem e.g. an agreement to mediate with a co-worked
The outcome letter should clearly set out an employees right to appeal.
If an employee thinks that the disciplinary action is unfair they can appeal to their employer setting out their grounds for appeal.
The employee should be offered the option to attend a further meeting to discuss the appeal which should be heard as soon as possible and in accordance with any timescales as set out in the Disciplinary Procedure. This meeting should be chaired by someone with sufficient seniority who was not involved in the initial disciplinary meeting/ process wherever possible.
As per the disciplinary meeting, the employee should be given reasonable notice and should be offered the right to be accompanied by a companion in accordance with the criteria above.
Following the appeal meeting, the employer should write to the employee setting out their final decision. There is no further right of appeal.
Sometimes it is necessary to suspend an employee whilst a potential disciplinary issue is investigated, this is normally where the allegations are very serious or, if the employee being in the workplace or continuing to work may have an effect on the investigation or potentially put the safety of co-workers, visitors, themselves, property or data at risk. This means that suspension doesn’t happen very often. If, however it is necessary to suspend an employee, this will usually be with pay and the employer should (in most cases) be told why they are being suspended.
The Employment Contract will dictate whether an employer can suspend without pay. If this is permitted, the employer must act reasonably in doing so.
If the Employment Contract does not say that the employer can suspend the employee, the employer may still be able to suspend the employee, but this should be with pay.
All employment rights remain in place during any suspension and if the employer does not have a contractual right to withhold pay, or even if the employer does, the employee may seek to make a claim in the Employment Tribunal for ‘unlawful deduction from wage.
An employer should confirm the terms of suspension in writing. An employer may advise the employee that they are not permitted to talk to or make contact with other employees, customers and / or suppliers and should the employee do so, the employer may be able to bring further disciplinary action. Employers need to be aware however that the employee must be able to make any necessary contact to defend their actions and therefore some contact may be necessary so some leniency may be required. This may be the case where the employee considers they need to obtain evidence to support their case from a work IT system or speak to a co-worker who was witness to an incident. Of course, if an employee wants to request a co-worker accompany them to the disciplinary hearing, they will need authority from the employer to make appropriate contact.