Disciplinary Proceedings: An Employee Guide
Facing disciplinary proceedings? Find out how the disciplinary procedure works and what steps you should take to ensure you're prepared for your disciplinary hearing.
By MyLegalAdviser - Last Updated March 2018
Facing disciplinary proceedings can be a worrying time for employees. Usually this is made worse by employees not knowing their rights and what to expect from the disciplinary process.
In this guide we'll cover when employers are allowed to discipline their employees, the procedures they should follow when doing so, the action they can take and when employees should consider taking legal advice.
IN THIS GUIDE:
- When can employers discipline employees?
- What rules and procedures must employers follow?
- What disciplinary action can employers take?
- When might you be able to bring a claim?
- Do you need to take legal advice?
When can employers discipline employees?
Employers are allowed to discipline their employees for:
- misconduct – something the employee has done (e.g. theft);
- capability – if the employee isn’t capable of doing their job or aren’t doing it well enough;
- absence – if the employee been absent for long periods;
- other reasons which affect the employee’s work.
What rules and procedures must employers follow?
Employers are legally required to have written disciplinary procedures. Employees should be made aware of the rules and procedures and employers should act fairly and in accordance with their own rules and procedures when disciplining employees.
Disciplinary rules and procedures should usually be set out in a staff handbook, which will be incorporated into an employee’s contract of employment.
Although the exact disciplinary process will vary depending on the issue and employer, as a rough guide the disciplinary procedure should look a little like this:
- employer thoroughly investigates the issue and gathers evidence;
- employer notifies the employee in writing of the issue and sets a time/date for a disciplinary meeting along with any right the employee has to be accompanied;
- employer conducts disciplinary meeting (at a reasonable time and place) to discuss the issue and give the employee a chance to explain their side;
- employer decides on appropriate action (this could range from verbal/written warnings, to demotion, to dismissal);
- employer notifies the employee in writing of the decision;
- employer gives the employee the opportunity to appeal; and
- if the employee does appeal, the employer notifies the employee in writing of their final decision.
Employers who fail to take these steps may leave themselves open to an expensive claim in the employment tribunal.
What disciplinary action can employers take?
There are a range of options available if an employer determines that an employee requires disciplinary action against them. Which type of action is appropriate will depend on the severity of the offence, whether it is repeated and what’s contained in the employer’s written rules and procedures.
The most common disciplinary actions are:
- informal verbal warning – often used for first and/or minor offences;
- written warning – generally used for more serious offences and repeated minor offences;
- final written warning – generally for a gross, serious or repeated serious or minor offence;
- demotion – generally for a gross, serious or repeated minor offence;
- suspension – generally for a serious or gross offence, or when investigating such an offence (take care to review their contract to see if they are entitled to be paid whilst suspended);
- dismissal – generally for a gross offence or repetition of an offence following a final written warning.
When might you be able to bring a claim?
Although the appropriate process and decision will depend on the type and severity of the offence and what rules and procedures the employer has in place, failing to do some or all of the following may mean an employee is eligible to make a claim against an employer:
- setting things out in writing – employers should set their disciplinary rules and procedures down in writing and make their employees are aware of them. Although it doesn’t have to be exhaustive, employers should usually categorise the seriousness of different offences. These will generally range from minor, to serious (e.g. frequent absenteeism and lateness) to gross (e.g. fraud or physical violence).
- following own policies and procedures - if an employer fails to follow their own rules and procedures this may give rise to a discrimination or dismissal claim.
- training staff - employers should ensure only properly trained staff deal with serious disciplinary decisions. A high proportion of successful disciplinary claims are a result of improperly trained managerial staff failing to follow proper disciplinary process.
- adopting ACAS Code of Practice – although not a legal requirement, failure to follow the three step process set out in the Acas Code of Practice as a minimum means an employment tribunal can increase the amount of an award following a successful claim by up to 25%.
- acting fairly, reasonably and consistently – employers should act fairly, reasonably and consistently in creating and implementing their disciplinary rules and procedures.
- keeping written records – employees have a certain period within which to bring a claim. Make sure you keep written records as evidence for a tribunal that you acted reasonably and followed your procedures when disciplining the employee.
If you think your employer might have acted unlawfully or unfairly, check out our Guide to Constructive, Unfair & Wrongful Dismissal to see if you might be able to bring a claim.
Do you need to take legal advice?
Whether or not you should take legal advice will depend on the seriousness of the disciplinary allegations and the action your employer is/has taken. A minor offence which may only incur a verbal or written warning may not necessitate taking legal advice.
However, where an employee faces serious allegations which could carry severe penalties (such as dismissal), they may wish to consult with an employment lawyer.
It may also be worth consulting with an employment lawyer where the employee feels their employer hasn't followed a fair disciplinary process or there has been some discrimination by the employer. In this case, the employee may have grounds to bring a claim against their employer at the Employment Tribunal.