Disciplinary Procedure Solicitors for Employers

If you encounter a situation where you believe there are grounds for disciplining an employee, it’s your responsibility to act fairly. To do so, it’s important to have a set of reasonable rules in place (a disciplinary procedure) which clearly set out to both you and your employees how disciplinary issues will be handled.

Disciplinary procedures are not simply about penalising employees but encouraging them to address their performance issues to become the best they can be at their jobs.

Whilst not following the Acas Code is not unlawful, employment tribunals can take non-compliance into account and increase the compensation awarded at a tribunal by up to 25%.

It’s advisable to get a disciplinary procedure drawn up by an experienced employment lawyer to ensure it suits your business and is compliant with the Acas Code.

Once you have the procedure in writing, make sure it’s accessible to all employees, via a staff intranet or your staff handbook or manual.

When navigating the various steps of disciplinary procedure, you should consider the following:

1. Are formal proceedings appropriate and/or necessary? If the employee is consistently arriving at work late, for example, formal disciplinary action may not be the right course of action. Instead, consider a conversation to establish the reasons (this is also an opportunity to establish if your employee needs any support or adjustments) and a verbal warning.
2. If formal action is necessary, you have a legal duty to investigate the alleged misconduct. This includes interviewing ‘witnesses’, i.e. colleagues and/or clients and customers, and gathering evidence such as telephone calls, emails and even video footage.
3. If the investigation leads to the conclusion that disciplinary action should be taken, meetings should be in person and the employee must receive a letter inviting them to the hearing. The letter must:
   • Give the employee reasonable notice;
   • Inform them of their right to be accompanied by a colleague or a recognised Trade Union representative;
   • Include the evidence you are relying upon; and
   • Be clear about what the allegations are, the potential outcomes and the next steps; and
   • Advise of the possible consequences, e.g. a written warning or dismissal.
4. It may be that you do not come to a conclusion in the disciplinary meeting, because the employee raised something in their defence that requires further investigation, for example. If this is the case, you can adjourn the meeting and schedule another one once you have further details.
5. If a decision is made during the disciplinary hearing, you must confirm the outcome in writing to the employee. The employee has a legal right to appeal this decision if they feel the decision is unfair or reasonable. The conclusion made after that appeal meeting is final.

There are four main sanctions of a disciplinary procedure: a verbal warning, a written warning, a final written warning, and dismissal. If you are acting as the result of gross or serious misconduct, you will normally proceed straight to dismissal.

It is not a legal requirement for employers to follow a formal disciplinary procedure, however, under the Employment Rights Act 1996, you must follow a ‘fair procedure’.

What constitutes a ‘fair procedure’ depends on the type of misconduct you are investigating. It may be that it isn’t a case of misconduct, and there are capability issues instead. For example, if an employee is not performing as expected, they may need further support or training. In this case, formal disciplinary action will not be appropriate. It may also be that minor misconduct, such as starting work late, can be discussed in an informal meeting.

Whilst the Acas Code is not the law, if a disciplinary case reaches an employment tribunal, judges will take into consideration whether the employer has followed the Acas Code in a fair way.

In cases of serious or gross misconduct, such as fraud or physical violence in the workplace, you must carry out an investigation and undertake a fair disciplinary procedure to avoid the dismissal being unfair.

Any action must be reasonable and consistent in the circumstances, i.e. your size and resource, the employee’s existing record, or if any training could help.

If you are considering a disciplinary sanction, you must ensure that you deal with things fairly. This means not only following a fair procedure but also having reasonable grounds for believing that the employee was ‘guilty’ of the allegations you are making against them. Any action, including a decision to dismiss, must be within the band of reasonable responses. If it is not, you could find yourself defending an unfair dismissal claim.

If you’re in doubt, seek disciplinary procedure legal advice from an experienced employment solicitor who can help you go through each step and eventuality.