An employer's guide to disciplinary processes & procedures

Employers should address employee misconduct informally where possible to maintain relationships but must escalate to formal disciplinary procedures—with a thorough investigation—for repeated minor issues or gross misconduct. It is imperative that they always follow a fair process per the Advisory, Conciliation, and Arbitration Service’s Code of Practice to avoid unfair dismissal claims. Key steps include investigating facts, holding a hearing where the employee can respond and be accompanied, deciding on outcomes like warnings or dismissal, and offering the right of appeal.

• What is a misconduct investigation and how do I undertake one?
• Undertaking disciplinary procedures in the workplace
• Why a disciplinary procedure is important
• The Acas disciplinary procedure steps
• The disciplinary hearing
• Deciding on a disciplinary outcome
• Employee disciplinary procedure timescales for appeals
• Does lack of capability warrant a disciplinary procedure?
• Is there a time when you can have a dismissal without a disciplinary procedure?
• Get expert support if you need it

When dealing with an employee's misconduct in a disciplinary context, you should always try to give feedback and nurture the employee to grow. Resolving minor misconduct informally allows you to keep a good working relationship and avoid legal matters.

However, sometimes an employee will simply not “get the message”. An employee may repeatedly commit the same offence (minor misconduct), or they may have one serious incident (gross misconduct). This can force employers to resort to disciplinary procedures.

Before we unpack what a disciplinary procedure is, why it’s important, and how to carry one out, let's take a brief look at what misconduct is and why misconduct investigations need to be undertaken before disciplinary procedures.

Misconduct meaning

Misconduct, in an employment context, is behaviour that fails to adhere to acceptable standards of conduct agreed upon in the employment contract and/or as set out in an employee handbook. Misconduct can range from minor infractions to serious acts that ultimately destroy the relationship between employee and employer.

What is minor misconduct?

Examples of minor misconduct include:

• Poor timekeeping.
• Unauthorised absence or failure to follow absence reporting rules.
• Successive breaches of company rules, policies, and/or procedures.
• Misuse or abuse of workplace facilities.

Repeated instances of minor misconduct can escalate to a more serious level of misconduct.

What is gross misconduct at work?

Gross misconduct is behaviour so serious that it is considered a fundamental breach of contract. Some forms of gross misconduct, such as sexual harassment, warrant dismissal without notice (summary dismissal). Serious forms of misconduct generally require a disciplinary hearing, often preceded by a misconduct investigation, before dismissals can be lawfully made.

Examples of gross misconduct include but are not limited to:

• Theft or fraud.
• Criminal conduct outside of work.
• Physical violence or serious bullying/harassment.
• Being under the influence of alcohol or illegal drugs at work.
• Serious health and safety breaches that could cause damage, injury, and/or grave personal loss.

Remember, even in cases of gross misconduct, UK employment law and the Advisory, Conciliation, and Arbitration’s (ACAS) Code of Practice on Disciplinary and Grievance Procedures require employers to follow a fair and reasonable procedure before dismissing an employee. 

What is a misconduct investigation and how do I undertake one?

Employers undertake misconduct investigations when they need to verify that a misconduct claim made against a worker/employee is legitimate, legal, and lawful. In other words, as with all investigations, the aim is to establish facts about the case. This is why misconduct investigations precede disciplinary procedures.

The basic misconduct investigation framework is as follows; employers must:

• Obtain a comprehensive statement of events covering what, when, and how the misconduct incident occurred (i.e. obtain witness statements for example).
• Obtain physical evidence or relevant documentation that sufficiently corroborates the statement of events.
• Record both sides of the story – to build a fair case, employers must obtain the respondent’s version of events.
• Make a final decision on whether to pursue disciplinary procedures on all the evidence gathered during the investigation phase.

Remember, for misconduct you must conduct a thorough misconduct investigation to corroborate a misconduct claim before proceeding to disciplinary procedures. If you don't, and dismiss on a false misconduct claim, your dismissed employee(s) can make a claim of unfair dismissal. If an employment tribunal upholds an unfair dismissal claim, your business will be liable to pay a hefty compensatory fine.

Need assistance with a misconduct case? Give one of our HR experts a call for free, same-day assistance on 01455 858 132.

Undertaking disciplinary procedures in the workplace

As we note above, a disciplinary procedure is a formal method of dealing with misconduct.

There are several avenues’ businesses can take to deal with misconduct, each dependent on the severity and misconduct type. These methods range from an informal discussion with or letter of concern by a line manager, to more formal proceedings that follow a set process. Your disciplinary policy should always be laid out in your employee handbook.

As employment law specialists, our recommendation is that line managers always undertake an informal disciplinary procedure before ramping up to formal disciplinary proceedings.

Why a disciplinary procedure is important

Acas sets out a Code of Practice that line managers don’t necessarily need to follow - it's not legally required – however, it is advisable that they do so as tribunals look favourably upon organisations who do. If your line managers conduct disciplinary processes unfairly and/or incorrectly, this can lead to discrimination claims and, if discrimination is found to have been based on a Protect Characteristic, can cost your business significantly in an employment tribunal.

This is why following the ACAS Code of Practice on Disciplinary and Grievance Procedures is highly advisable, as it is designed to uphold fairness in all dealings when it comes to disciplinary issues, leading to disciplinary decisions that mitigate risks for both employers and employees.

Despite the name, the purpose of the disciplinary hearing is not all about reprimanding employees. It’s about working with employees to maintain high standards of conduct and competence, whilst encouraging improvement if they fall below these standards.

One of the more powerful advantages of disciplinary procedures is that it provides an opportunity for employees to tell their side of the story, learn from it, and potentially improve processes or workflows.

Let's cover the Acas disciplinary procedure below.

The Acas disciplinary procedure steps

Acas’ basic set of disciplinary rules and procedures are as follows:

1. Understand the options

Your manager needs to decide if there's a formal case. If the misconduct is minor, and hasn't occurred successively before, an informal approach would be the correct pathway. If the case requires formal proceedings, then line managers need to ensure it is fair.

2. Carry out an investigation

As we've explained, line managers need to gather as much information as they reasonably can about the employee’s alleged misconduct. See the section above for a brief overview.

3. Inform the employee

If investigations reveal the need for formal proceedings via a disciplinary hearing, then line managers need to inform the employee immediately.

A disciplinary hearing letter should include details of misconduct allegations made against the employee(s), inviting them to a disciplinary hearing. Line managers need to ensure they include enough information about the allegation for the employee(s) to prepare a response during the disciplinary meeting. Employees need to be informed of their right to be accompanied by a colleague or trade union representative.

Line managers also need to add the date and location of the disciplinary hearing.

The disciplinary hearing

It’s important to remember the line manager's role during a disciplinary hearing is to present evidence and obtain the employee's response to the misconduct claim. Line managers should never officiate dismissals or other disciplinary actions during the meeting.

The hearing is the chance for your manager(s) and the employee to state their case. They need to take notes during the hearing and must allow the employee to defend themselves against the allegations and ask questions, without impediment.

Once the meeting has ended, line managers must make a final decision based only on established facts. Once a decision has been finalised, managers need to inform the employee of the next steps in the process.

Deciding on a disciplinary outcome

Line managers can choose from the following outcomes:

• Verbal warning(if applicable).
• No action needed.
• Informal warning.
• First written warning.
• Final written warning.
• Demotion.
• Moving department.
• Dismissal.

Remember, line managers must offer the employee the right of appeal the decision.

Employee disciplinary procedure timescales for appeals

There is no specific legal timescale in which you should hold a disciplinary appeal hearing. However, the Acas Code of Practice on disciplinary procedures in an organisation state that an employer must hear an appeal without unreasonable delay, and ideally at an agreed time and place.

What makes up an ‘unreasonable delay’ will depend on the circumstances. The employer should keep the employee informed of the reason for any delay, for example, the sickness of a key individual, or the need to investigate additional evidence that has come to light.

Does lack of capability warrant a disciplinary procedure?

No, not usually. Capability is about an employee's ability to do their job.

Usually, it's a capability issue if the employee has no control over it. For example, if an employee becomes unable to do their job because of an illness and adjustments or support cannot help.

For a capability issue, you should follow a capability/performance management procedure.

Find out more by reading our article on capability dismissal here.

Is there a time when you can have a dismissal without a disciplinary procedure?

Whilst you can dismiss an employee without notice, there is no instance where you can dismiss someone without a proper and fair procedure.

Even during summary dismissal, you must still follow a fair disciplinary procedure for gross misconduct, as you would do for any other disciplinary matter.

Get expert support if you need it

Many misconduct issues will require a robust disciplinary and grievance procedure, and the legal aspects of disciplinary procedures can be difficult to navigate.

If you need support through a misconduct case, contact one of the experts here at Croner on 01455 858 132..