GUIDE TO DISCIPLINARY PROCEEDINGS

Disciplinary proceedings: what you need to know

Employers are legally required to have 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.

Employers who fail to do so leave themselves exposed to potentially costly and time-consuming employment tribunal claims.

When employees can be disciplined

Employers can generally 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.

Rules and procedures

Employer’s disciplinary rules and procedures should be fair and reasonable. Ideally they should be set out in a staff handbook which forms part of the employee’s contract of employment and employees should be made aware of them.

When considering and undertaking disciplinary proceedings, employers should apply their rules reasonably, fairly and in a consistent way.

Although the exact process will vary depending on the issue, employers should generally:

  1. thoroughly investigate the issue and gather evidence;
  2. notify the employee in writing of the issue and the time/date of the disciplinary meeting and their right to be accompanied;
  3. have a disciplinary meeting (at a reasonable time and place) to discuss the issue and give the employee a chance to explain;
  4. decide on appropriate action (this could range from verbal/written warnings, to demotion, to dismissal);
  5. notify the employee in writing of the decision;
  6. give the employee the opportunity to appeal; and
  7. if they do, notify the employee in writing of your final decision.

Employers who fail to take these steps may leave themselves open to an expensive claim in the employment tribunal.

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Disciplinary action

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.

How the disciplinary process should be conducted

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, there are some things employers can do generally to limit their potential exposure to a claim:

  • set 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, it’s a good idea to categorise the seriousness of different offences. Usually these will range from minor or serious (e.g. frequent absenteeism and lateness) to gross (e.g. fraud or physical violence).
  • follow policies and procedures - it’s no use having a nice set of policies and procedures if they’re ignored when it comes to actually disciplining an employee - make sure the rules are followed or the employee may have a claim against you.
  • train staff - 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.
  • 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%.
  • act fairly, reasonably and consistently – make sure you are fair, reasonable and consistent in creating and implementing your disciplinary rules and procedures.
  • keep 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.

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Should you take legal advice when disciplining an employee?

For employers, it’s often worth taking advice when considering disciplining an employee, particularly where you don’t have proper written employment contracts and/or disciplinary procedures and policies in place.

Taking the time to have a quick consultation with a specialist employment lawyer could help you avoid a costly claim, saving you a great deal in the long run.

For employees, where your employer has failed to follow fair and reasonable procedures when disciplining you (especially if they haven’t followed their own written procedures or the ACAS Code of Practice as a minimum) you may be able to raise a grievance or issue a claim against your employer for unfair, wrongful or constructive dismissal at a tribunal. Where this is the case, it’s often worth having an initial consultation with an employment lawyer as they can advise you of the strength of your case and your rights, if any, to make a claim before you take any irreversible actions.


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