Disciplinary procedures in the workplace

When running a business, you will need to deal with grievances and disciplinary issues from time to time.

There are several reasons that may lead to the need for disciplinary action, including, but not limited to, an employee’s behaviour, conduct, performance, and/or absence from work.

Whatever the reason, you must have a fair process in place. If you’re looking for answers to immediate concerns about your employees’ behaviour, contact the Croner team now by calling 0808 501 6651.

This piece focuses on disciplinary procedures in the workplace, exploring the process of writing a disciplinary letter and creating a disciplinary policy.

What is disciplinary action?

Undertaking a disciplinary is the act of enforcing discipline for wrongdoing or noncompliance.

Although it is most common in workplaces, wherever there are a set of rules, there will also be some form of disciplinary procedure for breaking these rules.

Disciplinary at work is the formal process for handling breaches of an employee’s contract of employment.

It is an everyday aspect of many HR professionals’ working lives as it relates to a variety of concerns that may arise in the workplace.

Examples of instances that may lead to disciplinary include, but are not limited to:

• Substance misuse.
• General misconduct.
• Declining performance.
• Unauthorised absences.
• Bullying and harassment.
• Health and safety violations.
• Misuse or theft of company equipment (social media, phone, car, computers, etc.).

The Acas Code of Practice on disciplinary and grievance procedures recommends that employers introduce a policy outlining their commitment to fair disciplinary hearings and explaining their grievance reporting procedures to staff. This document can make up part of the terms and conditions included in their contract of employment.

Before going down the disciplinary route, it is important to consider discussing any issues with the employee it involves first, as this is often an effective method of resolving issues quickly without involving other people or using up resources.

You can resolve issues by:

• Talking privately with the parties involved.
• Listening to their point of view.
• Producing or agreeing to improvement suggestions or adjustments you can make.
• Creating a plan for training and development (if the issue relates to an employee's declining performance).

However, where this is not possible, then you should conduct the formal disciplinary process.

If you decide to do this, you must follow your written policy that sets out the standards of fairness you will follow during the process.

As well as protecting the employee from unfair treatment, your disciplinary policy also protects you and your business from unfair dismissal or discrimination claims.

The disciplinary process must include the following steps:

1. Send out a letter detailing the complaint or the reasons you are considering disciplinary action.
2. Invite the relevant party to a meeting to discuss the issue.
3. Decide on disciplinary action based on arguments made in the hearing.
4. Give employees the chance to appeal any disciplinary decision/action.

The Government suggests following the Acas Code of Practice on Disciplinary and Grievance Procedures.

Whilst it is not a legal requirement, if you don’t and you lose an employment tribunal, you may be liable to pay more than you would have if you followed the code of practice.

Disciplinary procedure

As with all disciplinary and grievance matters, you may need to undertake an investigation into the concern to find out all you can about it.

The purpose of this is to:

• Decide if there is a case in the first place.
• Ensure a consistent and fair process.
• Gather evidence from all parties involved in the disciplinary proceeding.
• Help you decide on the appropriate next step.

After the investigation, if you decide there is a case for the employee to answer, you can then send out a disciplinary letter informing the employee of your concern.

The letter should include details of the allegations against the employee and information about the next step(s) of the process. The disciplinary letter should also include enough information for the employee to prepare a response during the disciplinary meeting.

Remember to add the date and location of the disciplinary hearing and highlight the employees’ right to have a witness attend the hearing with them. This can be a colleague or a representative from their trade union.

It is important to remember: the reason for the disciplinary hearing is to determine if the employee breached their contract of employment. You should not consider taking any disciplinary action before or during the meeting, only after.

To further guide UK employers, we provide a disciplinary letter template you can adapt for use in your organisation.

We have also created an infographic that provides an overview of the steps of the disciplinary procedure you must follow to ensure a fair process.

What is a disciplinary hearing?

It is the meeting between yourself and your employee to discuss your concerns and to allow them to set out their case.

The disciplinary meeting (also referred to as a disciplinary hearing) is where you explain the details of the complaint to your employee including all evidence gathered during the investigation stage.

To avoid claims of discrimination at an employment tribunal, it is important to know how to conduct a disciplinary meeting.

• The first step is to ensure you are following the basic principles of fairness and equality during the process. As we mentioned above, you can refer to the Acas code of practice on disciplinary and grievance procedures for the best business practices.
• You will also need to appoint someone to take notes during the disciplinary process. For the sake of fairness, consider enlisting someone who is not involved in the case.
• The next step is to highlight the procedure that you will follow during the process and identify all parties involved in the procedure.
• When everyone involved is present, you can then lay out the cases against the employee.
• If you have questions to establish the facts of the case, you can ask them here. You should then allow the employee enough time to state their side of the story as well as any mitigating factors that might influence your decision.
• If new matters arise during the hearing, you may adjourn the procedure until you have had time to conduct further investigations.
• After considering all sides and the evidence provided, you can then decide if the issue warrants disciplinary action or not.
• Finally, you should inform the employee of your decision in a letter that includes the reasons for the decision you have made and their right to appeal it if they are not satisfied.

You can also consider the following disciplinary meeting tips for a successful outcome:

• Preparation: Ensure all parties involved know where and when the meeting is and what you will discuss in it. You should also ensure the employee involved is aware of his/her right to have someone accompany him or her to the meeting. This could be a co-worker or a union representative.
• Taking notes: It is important to have an impartial party in the meeting to take notes, which may serve as evidence if the employee makes claims of unfair dismissal to an employment tribunal down the line.
• Reasonable adjustments: If you have a disabled employee, or if they are unable to attend the hearing for any legitimate reasons, then consider any reasonable adjustment you can make to allow the process to run smoothly.
• Fair process: It is important to be impartial. Remember to allow your employee enough time to have their say. As a rule of thumb, before adjourning the disciplinary meeting, it is a good idea to ask the staff member if they’ve managed to put their case across successfully. If they’re satisfied with the information they’ve provided, then you can adjourn the meeting before making your decision.
• Data protection: Remember data protection laws during the procedure. If you'll be collecting and retaining relevant personal information, provide your staff with a written notice on how you'll collect, use, and store this information.

Can you record a disciplinary meeting?

Yes, you can, however, you may only do so if all parties agree to the recording.

There are many reasons why you might resort to recording a disciplinary meeting; primary among them being the security it gives to both parties that this recording will provide evidential support during an employment tribunal for unfair dismissal or discrimination. Another valid reason for recording a disciplinary meeting is to use it in lieu of written notes.

If you do decide to proceed with a recorded disciplinary meeting, you’ll need to consider the following:

• Your obligations under the Data Protection Act 1998.
• If the recording covertly breaches your staff’s right to a private and family life under the European Convention on Human Rights.
• Treating the recording as ‘personal data’ under the Data Protection Act. This means you must also process the recording in accordance with the principles set out in the Data Protection Act.

After the disciplinary meeting, you can allow some time to consider the case carefully before deciding on a course of action. If you aren’t deciding on next steps immediately, you should inform all parties of the period in which you aim to decide.

Once you’ve decided on the appropriate disciplinary action, you must inform the employee of it in writing. There are different actions you can take after this meeting depending on the circumstance.

Examples of disciplinary actions include:

• No action.
• Verbal warning.
• Written warning.
• Final warning.

You’re required to inform your employee of the outcome of the hearing in writing. The disciplinary action letter to your employee should include a summary of what you discussed in the hearing as well as any disciplinary action you deem fair and reasonable.

When you decide that there was no misconduct, you should end the procedure immediately and inform all parties involved in the disciplinary procedure. For future reference, consider keeping a report of the procedure and outcome.

Corrective action vs disciplinary action

Corrective action is the process of correcting an employee’s behaviour, attendance, or performance.

Like disciplinary action, you may consider taking corrective action if issues aren’t serious enough to warrant disciplinary action. For example, when addressing issues related to the employee’s capability, you may decide to take corrective action such as offering additional training or allowing for time off to attend skills development courses. If you haven’t seen any improvement in the employee’s performance, you can then consider taking disciplinary action.

Disciplinary procedure timescales

There’s no specific period for how long the disciplinary process should take.

Whilst there’s no specific information as to how much notice must be given for a disciplinary hearing, Acas’s Code of Practice on Disciplinary and Grievance Procedures suggests holding the meeting as soon as is ‘reasonably possible’ whilst giving the employee enough time to prepare their response.

It will all depend on the circumstances of individual cases. Whilst some cases may be straightforward, others may require you to conduct investigations and interviews that could run for a while.

Whatever the case may be, the period should be reasonable. Not short enough that your employee is not able to prepare their defence, but also not long enough that you leave the employee in an extended state of suspense, which can turn into a mental health risk.

There’s also no time limit for disciplinary actions; however, the timescale should be reasonable. If you decide to proceed with dismissal, then inform the employee(s) as soon as possible in writing, including information stipulating their notice period and their right to appeal.

When issues related to an employee’s performance or behaviour arise, you can set a period in which you’d expect to see improvements. If your expectations still aren’t met, you may repeat the process until you feel dismissal is the only reasonable option available.

Disciplinary policy

It’s important to have and maintain policies that clearly lay out your company’s position on various disciplinary-related issues.

A disciplinary policy ensures you are clear, fair, and consistent when dealing with misconduct or grievances, setting out which behaviours are acceptable, and which aren’t. This sets the standard for what your organisation can expect from its staff and the repercussions for not adhering to the policies.

Whilst the content of your disciplinary policy will depend on the nature of your business, it should include the process you’ll conduct, i.e.:

• Formal and/or informal warnings.
• Disciplinary meetings and/or further actions.

Your policy should also remind your employees of their rights to have someone accompany them to the disciplinary hearing as well as their right to appeal following the disciplinary decision.

To ensure your staff are aware of your stance on these issues, you should have your policies readily available. Include them in your staff handbook, on the company intranet, and anywhere else you deem fit and easily accessible.

Get expert employment law support

Croner’s employment law advisors are some of the most renowned and knowledgeable professionals in their respective fields.

Contact our team for advice on handling disciplinary and grievance issues in the workplace. Call us now on 0808 501 6651.

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