How to Manage a Disciplinary Process Safely and Effectively

For a disciplinary process to be fair it needs to follow certain steps.  It’s really important that you adhere to these as failure to do so could land you in an Employment Tribunal.

Step 1: Undertake an effective investigation

It’s essential to make sure you have gathered all the relevant facts and information in relation to the matter before you decide if a formal disciplinary hearing is the right route to take. 

Unless the evidence is very clear cut, it’s good practice to hold an investigatory meeting with the individual.  This is the opportunity for questions to be asked of the employee and clarification sought on facts and events.

There’s no legal right for an employee to bring a representative to an investigatory meeting.  However if they ask to do so, then its fine to allow this.  It can even make the process run more smoothly, particularly if the employee is upset, as their representative can support them.

In order to ensure fairness and impartiality, all investigations should be undertaken by someone who is not part of the panel who hears the disciplinary.  This can be challenging in small companies, but it is important to try to separate the two parts of the process if at all possible.

When should you suspend an employee?

You may decide to suspend the employee whilst the investigations take place.  This should only be if the nature of the allegations is very serious or if you think that they will try to interfere in the investigations.  If you do decide to suspend you will need to advise the employee why and that they will remain on full pay during their suspension.  It’s also important that they understand that the decision to suspend them is a neutral act and will not impact on the outcome of the disciplinary hearing.

Step 2: Inviting the employee to the disciplinary hearing

If there is adequate evidence to support further action you need to invite the employee to a formal disciplinary hearing.

This should be by letter in which you need to set out details of the allegations.  You also need to include copies of any evidence that you will rely on in the hearing, for example witness statements, notes from relevant meetings etc.

The employee must be allowed to bring a representative, who can be either a colleague or a Trade Union Rep.  If neither of these options are available you can of course allow them to bring someone else, such as a family member, but this is at your discretion.  Representatives can ask questions and express views, but they can’t answer questions which are directed at the employee.

The letter also needs to state what the potential outcome of the meeting could be, e.g. if the situation could potentially lead to their dismissal then you need to advise them of this.

Step 3: How to conduct the disciplinary hearing

At the hearing you will need to discuss the allegations and the evidence with the employee.  It’s really important to give them the opportunity to explain their side of events and to provide any evidence that they have. 

If they have questions for any witnesses then it’s ok to ask the employee to submit these in advance but there is no specific right for the employee to question witnesses at the hearing.

It’s fine to adjourn the meeting if necessary to allow you time to review any evidence that they may bring.   In any case you should always adjourn for a short while to consider all of the facts before reaching your conclusion and issuing a sanction.  Otherwise it gives the appearance that the outcome of the hearing was a foregone conclusion. 

Step 4: Deciding on the outcome

To decide whether a formal sanction is warranted you need to weigh up the following:

• The evidence presented in the hearing against the employee
• Any evidence or defence presented by the employee

If you find that you still need more information to enable you to make a fair decision then it’s fine to undertake further investigations before reaching your conclusion.

Unlike under criminal law, which requires something to be proved “beyond reasonable doubt”, in employment terms you only need to have “reasonable belief” that something has occurred.  Therefore the key thing to consider if whether your conclusions are both fair and reasonable given the evidence available to you.

What are the different levels of disciplinary sanction?

The level of disciplinary sanction given should depend on the seriousness of the allegations made against the employee.  The usual levels of warning are:

What is a Gross Misconduct Dismissal?

If the employee has committed an act of “Gross Misconduct” they can be “summarily dismissed”. This means that you can dismiss them without notice but you do still need to follow a fair disciplinary process first, i.e. hold a disciplinary meeting and allow them to bring representation. Gross Misconduct covers a range of allegations including things such as:

• Theft
• Dishonesty
• Indecent behaviour
• Attending work under the influence of drink or drugs
• A serious breach of health and safety rules
• Offensive behaviour such as harassment, bullying or violence
• Gross insubordination

It’s important to set out in your disciplinary policy the types of actions that constitute Gross Misconduct but to also make it clear that the list is not exhaustive and that you may find other actions of a similar level of seriousness to be Gross Misconduct.

Step 5: What to include in the disciplinary outcome letter

Even if you have advised the employee of the outcome at the meeting you still need to write to them to confirm the details.

Your letter should include:

• A summary of the allegations
• What evidence was presented
• Your conclusions based on the evidence
• The outcome i.e. what level of sanction is being given
• How long the sanction will be “live” on their employee record
• What actions / improvements you expect to see
• The right of appeal

Step 6: Offer a Right of Appeal

Once the employee has received a disciplinary sanction they may decide to appeal the decision.  There is no statutory requirement to offer an appeal. However, the ACAS Code of Practice states that an appeal should be offered, and an Employment Tribunal will not look favourably at a company who fails to do so.

Ideally an appeal should be heard by someone who is more senior than the person who heard the original disciplinary.  Of course this can be tricky in small organisations and consideration should be given at the outset regarding who will hear the various stages of the disciplinary process.

The appeal hearing should not be a full rehearing of the disciplinary but should focus on specific points of appeal.   This may be areas where the employee has further evidence or in relation to particular points where they feel the disciplinary panel failed to reach a fair conclusion.  They may also feel that the sanction given was overly harsh in the circumstances.

The employee has the right to be accompanied to an appeal hearing.

What are the possible outcomes from an appeal?

Having heard the appeal the options are:

• Dismiss the appeal – in which case the original disciplinary sanction still stands
• Uphold the appeal and remove the disciplinary sanction
• Uphold the appeal and impose a lower level of sanction

If further evidence comes to light an appeal hearing should not seek in impose a higher level of sanction. Instead the appeal should be adjourned, and a new disciplinary hearing arranged.

Common disciplinary mistakes to avoid

• Not allowing the employee to bring a representative
• Not properly investigating the allegations and seeking clear evidence
• Not sharing the evidence in advance of the hearing
• Taking too long over the process by allowing unreasonable delays
• Letting one person do both the investigations and the hearing
• Not allowing an appeal

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