Are you following the correct disciplinary procedure?

All organisations should a disciplinary procedure with clear guidelines for managers and employees. As many tribunal cases are won due to employers not following the correct procedure, it’s more important now more than ever to ensure the correct procedures are being carried out. We have compiled key information and steps to take during your disciplinary process.

Acas code of Practice

The Acas Code of Practice on Disciplinary and Grievance Procedures provides practical guidance and principles for handling disciplinary matters.

Failing to follow the code alone doesn’t automatically make an employer liable for legal proceedings. However, employers should consider that Employment Tribunals take the code into account when considering cases. Failure to adhere to the code’s recommendations may not only render a dismissal unfair but may also result in an increase in compensation awarded to an employee by up to 25%.

Dealing with informal disciplinary procedures

In cases where the matter is not of a serious nature e.g. lateness, it’s best to make attempts to deal with the case informally first. Having informal discussions will usually prompt an employee to make the necessary improvements.

How to handle an informal disciplinary:

  1. Start by having a private one-on-one conversation with the employee. During this conversation, explain your concerns and reaffirm the required standards.
  2. Ask about the reasons for the shortcomings and find out if there are any underlying problems.
  3. Agree with the employee about the steps they will be taking to make the necessary improvements. Agree on actions/targets and how and when the employee will carry this out. Be sure the targets are reasonable within the time frame given.
  4. Plan a date and time to review the matter with your employee.
  5. Following the meeting, write a record of what was said and agreed. Keep this record and provide a copy to the employee also.

Dealing with formal disciplinary procedures

Every allegation of misconduct should be investigated accurately and impartially before formal disciplinary proceedings start. In cases where a formal disciplinary is necessary, you should ensure you do the following:

  1. Invite the employee to a formal hearing. In the letter, you should set out the allegations in detail, inform them of their right to be accompanied, and enclose copies of the evidence to be used against them. Give the employee reasonable notice of the disciplinary hearing.
  2. Ensure all evidence and investigation notes are present during the hearing, as well as a note-taker.
  3. If the employee is not accompanied, remind them they were informed of the right to be accompanied and confirm that they have chosen to proceed alone.
  4. During the hearing, allow the employee to state their case.
  5. After the hearing, inform the employee of the decision, notify them of their right to appeal and when they should appeal by.
  6. If the employee chooses to appeal by the deadline, hold an appeal hearing. Communicate the final decision to the employee once an outcome is reached.

Warnings & Dismissals

At least two formal warnings are recommended before dismissal, one being a formal written warning and the other a final written warning. A disciplinary warning remains on the employee’s record for a set period of time. You can give the next stage of warnings if the employee doesn’t meet the required improvements. In cases of gross misconduct, the initial written warning and final written warning can be skipped.

When dismissing, you should ensure that the reason is one of the five potentially fair reasons for dismissal under the Employment Rights Act 1996:

  • Conduct/Misconduct
  • Lack of capability or qualifications
  • Redundancy
  • A statutory duty or restriction that forbids employment from continuing
  • Some other substantial reason

When dismissing an employee, they are entitled to a notice period provided they have been with you for at least a month. Their notice period will be set out in their contract and is determined by the employee’s length of service. If it isn’t in the contract, there are legal minimum periods you must stick to. No notice is needed for a gross misconduct dismissal. Failure to adhere to the correct notice period could result in a claim for wrongful dismissal.