Disciplinary Procedures – A Guide For Employers

Many cases of employee misconduct can be dealt with informally, away from any strict procedures. However, if an employee is repeatedly displaying serious misconduct issues, you may need to follow the disciplinary process set out in your employment policies. We explain the process and potential pitfalls here.

From time to time, your business may face a situation where an employee has breached your company’s rules. If the breach is serious enough, or it is not their first time, you may wish to take disciplinary action to ensure it does not happen again.

Taking disciplinary action is not as simple as taking an employee to one side and giving them a telling off. There are procedures that must be followed to safeguard you and your business from any potential tribunal claim.

In this guide, we will provide you with the steps you must take in order to carry out the disciplinary process smoothly. If you have any more questions after reading this guide, please get in touch with our expert Employment Law team by calling 0151 666 9090 or by contacting us here. 

What Is The Disciplinary Process?

A disciplinary process is a formal way for an employer to deal with an employee’s:

• Unacceptable or improper behaviour – Misconduct
• Performance – Capability

Depending on the individual case, an employer should always try to resolve an issue with their employee first by:

• Talking with them and any other staff involved privately
• Listening to their point of view
• Agreeing on improvements to be made
• Setting up a training or development plan, if capability is the issue

If the above actions have been performed and there is still an issue, a disciplinary process can be launched.

Employers should plan early on as to who will deal with each stage of the disciplinary process, it is recommended that the roles of the investigation officer, disciplinary officer and appeal officer should be separated out wherever possible depending on the size and administrative resources of the employer. If there is not enough personnel of a senior standing to separate out those roles then you can have the same person conduct the investigation and deal with the disciplinary action. It is essential that someone is kept in reserve to deal with any appeal against the decision; that is, someone who is genuinely in a capacity to overturn the original decision should that be needed and who has been uninvolved in the process/decision making.

The basis of a formal disciplinary process is set out in the ACAS Code of Practice. The basic requirements are to:

 Establish the facts by conducting an investigation into the issues, ensuring that you properly document the same

• Give notice of the disciplinary meeting to the employee in writing
• Provide evidence to the employee in advance of the disciplinary meeting
• Put clear allegations in the invitation letter so that the employee knows the case against them
• The disciplinary invitation letter should set out the possible consequences; for example, a written warning, final written warning or dismissal. The potential level of sanction should reflect the highest level of sanction that might be imposed, taking into account the nature of the conduct the employee is accused of.
• Make sure the employee is aware that they have a right to be accompanied in the disciplinary meeting; that right is generally limited to a work colleague or an accredited trade union representative.
• Give the employee the decision in writing and inform them of their right to appeal your decision.

The procedure that you, as an employer, have taken will be considered in any employment tribunal, should the matter get that far. This means it is vitally important to follow the right steps.

The correct, simplified steps for any employer are:

1. Get an initial understanding of the problem
2. Investigate thoroughly
3. Invite the employee to a disciplinary meeting
4. Conduct the disciplinary meeting
5. Decide on an action to take
6. Confirm the outcome in writing
7. Offer the right of appeal to the employee
8. If the employee appeals, then that step in the process will need exhausting

Having this procedure set out in your employment policies can ensure your employee has no unpleasant surprises and helps keep matters calm and professional.

The ACAS Code applies to anyone who is legally classed as an employee. If an employer fails to follow the ACAS Code, any potential compensation awarded can be increased by up to 25%. If an employee fails to follow it, the compensation can be reduced by up to 25%.

What Is A Disciplinary Meeting?

Under the ACAS Code, before an employer makes any decision in relation to dismissing or disciplining their employee, they should hold a disciplinary meeting.

The disciplinary meeting is perhaps the most important part of the disciplinary process. This is a meeting between an employee and employer in order to discuss the allegations of misconduct or capability issues.

During the meeting:

• The employer should explain the allegations and go through evidence collected via the investigation
• The employee should be allowed to set out their case and answer the allegations
• The employee should also be allowed to ask questions, present their own evidence, call relevant witnesses, and raise any concerns with the employer’s evidence

We also advise conducting the disciplinary hearing in private. Disciplinary action can be conducted outside of normal office hours for added privacy; however, if you are requiring an employee to attend a disciplinary meeting outside of their normal working hours they should be paid their normal pay for their time attending that meeting. This is not to make the disciplinary a secret, but to avoid making the employee unnecessarily stressed or embarrassed.

How Much Notice Must Be Given For A Disciplinary Meeting?

The ACAS Code states that employees must receive a “reasonable” amount of notice for any disciplinary meeting. The amount of notice will depend on a number of factors, including the amount of evidence that has been collected during the investigation.

This is because the employee needs enough time to review the evidence and prepare their own case before the hearing takes place. They also need to be given time to organise having a colleague or trade union representative present during the hearing, something which they have a right to under the ACAS Code.

Failure to provide an employee with enough notice could be seen as not following a fair process by an employment tribunal, meaning they would likely favour the employee in any potential decision.

What is deemed as “reasonable” can be a little subjective. However, giving your employee less than 48 hours to review evidence and organise someone to accompany them in the meeting is not enough time. Depending on the complexity of the case, normally one week is sufficient notice for a disciplinary hearing.

Can You Record A Disciplinary Meeting?

Both employee and employer may have reason to record a disciplinary meeting. A recording of the meeting can potentially bolster or hinder the employee’s or employer’s case should a claim for unfair dismissal or discrimination be made in the future. A recording of a meeting will reveal things that a written record does not — specifically, an audio recording is verbatim (usually the notes are not) and the manner/tone of any participants in the meeting can be heard, and this is not always helpful.

However, neither employee nor employer has the right to record the meeting without an explicit agreement from both parties.

Employers have a right to refuse an employee’s request to record a meeting, but they must be confident that they are able to provide accurate minutes or notes of the meeting.

Employees are not allowed to record covertly during the meeting. Having said this, Tribunals take a fairly employee-friendly approach here. If the recording contains evidence that is relevant to the potential claim, it is possible the Tribunal will agree to the recording being admitted as evidence, even if the employer did not agree to the recording.

We would recommend any employer bears this in mind when conducting a disciplinary meeting.

How Percy Hughes & Roberts can help

No one enjoys going through the disciplinary procedure, whether you are an employee or employer. It is vitally important, however, that as an employer you understand the process and potential pitfalls.

Failing to follow the right disciplinary process could open your business up to an employment tribunal claim. Having a clear, well-defined disciplinary procedure in your employment policies is imperative for any business, no matter the size. Setting out this policy in your handbook (and then sticking to it) helps keep you and your business on the right side of employment law in the UK.

At Percy Hughes & Roberts, we have a team of employment lawyers who boast years of experience and promise a confidential, friendly, and honest approach to all issues within the employment law field.

If you have any questions regarding disciplinary procedures, a potential dismissal, or any issue surrounding employment law, you can get in touch with our team for expert advice. Get in touch with one of our Wirral Employment Lawyers today by calling 0151 666 9090 or by completing the “Get in touch” form on this site.