Disciplinary procedure: taking formal action against misconduct

Disciplinary procedures and the ACAS

The basis of a formal disciplinary policy is the ACAS Code of Practice, which sets out the expectations for a fair process.

The basic requirements are:

• giving notice of the meeting
• providing evidence in advance
• putting clear allegations in the invitation letter
• making sure the employee is aware that they have a right to be accompanied in the disciplinary meeting
• informing them of their right to appeal your decision.

If you find yourself defending an employment tribunal claim, failure to follow the ACAS code will count against you.

The importance of a disciplinary policy

Ideally, your staff handbook will contain a disciplinary policy outlining the procedure you will take should any of your employees fail to meet the expected conduct standards.

A disciplinary policy is important to establish a clear procedure that you will use in the event of serious or repeated misconduct. In turn, this can demonstrate that you’re dealing with employees fairly and consistently.

Your policy should also contain examples of unacceptable behaviour, particularly those that would be considered an example of gross misconduct.

If you have any procedures which, if not followed, would amount to gross misconduct, it is essential that you make employees aware that this is a potential consequence.

As well as establishing your procedure, a policy will demonstrate that you are treating staff fairly and consistently.

If you have an employee who may have a potential discrimination claim, or who may be able to bring an unfair dismissal claim, this is even more crucial.

A clear procedure can also help keep matters calm and professional in situations where emotions are potentially running high.

Step 1 – Get an initial understanding

Establish the facts as soon as you can. Get the employee’s side of the story before you decide on next steps.

If you determine that the issue is more closely linked to performance or ability rather than behaviour, following a capability procedure may be more appropriate.

In the case of a minor or first offence, it may be most appropriate to issue an informal warning, avoiding the need to enter into a formal disciplinary process. This could be as simple as having a conversation with the employee and following it up with a letter reflecting what was said.

Step 2 – Investigate thoroughly

If the offence is more substantial, or it is not the employee’s first, you may need to resort to formal procedure.

Begin by gathering all the information you need to establish the facts about the situation: speak to witnesses, look at any information that may serve as evidence and hold an investigation meeting with the employee concerned.

Unless you have written this into your disciplinary procedure, the employee doesn’t have the right to bring a representative to the investigation meeting, and you don’t have to write to them to invite them to an investigation meeting, as would be the case for a disciplinary meeting.

Make sure you record all your notes and evidence at this point.

If you’re investigating an instance of possible gross misconduct, it may be appropriate to suspend the employee while the investigation is in progress in cases where there are concerns of risk to the business or where someone could interfere with the investigation.

If you believe there is no case to answer following the investigation, the matter stops here.

Otherwise, proceed to a formal disciplinary meeting.

Step 3 – Invite the employee to a disciplinary meeting

Invite the employee to a formal disciplinary meeting in writing.

Provide them with notice of the meeting, be sure to advise them of their right to be accompanied and provide copies of all the evidence you hold against them for their review.

Make sure the invite explains the conduct that the disciplinary matter will discuss.

Remember that your employee has a right to view and respond to all evidence before a decision on disciplinary action is made and providing them with key evidence on the day of the disciplinary meeting is unlikely to be fair.

If the meeting may result in their dismissal, because the matter is so serious (i.e. gross misconduct) or they are already on a final written warning, you should explain in the invitation letter that this could be a potential outcome of the meeting.

Step 4 – Conduct the disciplinary meeting

In the disciplinary meeting you’ll need to:

• Check that the employee is aware of their right to be accompanied if they have not brought anyone with them.
• Run through the allegations you hold against them and invite them to respond.
• Review the evidence you hold and offer the employee an opportunity to add any further comments.
• Make sure notes are taken throughout the meeting – ideally you’ll have a note-taker present. This not only provides a witness to discussions but also means you can concentrate on running the meeting.
• If you feel more investigation is needed before you make your decision, advise the employee that a further meeting is necessary. Ensure you send them any new evidence you uncover before the meeting takes place.

Step 5 – Decide on action to take

After the meeting, consider all the evidence you now have and whether it’s sufficient to prove the allegation of misconduct.

In the case where you find the employee innocent, or feel that the behaviour doesn’t warrant taking further action, you would explain this to the employee and end the procedure.

If misconduct is proven, the next step is to decide on the appropriate level of warning.

Consider whether the employee has any previous warnings on file, any mitigating circumstances and their length of service. Also reflect on whether similar situations have occurred in your organisation previously and how they have been dealt with to ensure fairness and consistency.

Your disciplinary policy should detail the levels of warnings in your procedure. You should have at least two levels before you reach the dismissal stage, with the exception of gross misconduct where you can progress directly to the dismissal stage.

Normally, lower level warnings are issued where the misconduct is more minor.

First level of warning

This is usually appropriate for relatively minor issues, or the first issue you have with an employee. Accompany this with your expectations for their behaviour going forwards, and the further action you may take should they fail to meet these expectations.

Final written warning

A final written warning may be applied if there is already a live warning in place, or in cases of serious misconduct just below the level of gross misconduct, such as breaching a very important procedure – a ‘first and final warning’.

Dismissal

This penalty can be issued for further misconduct when there is already an active final written warning on record. In this case, the employee would be entitled to their contractual notice.

Alternatively, dismissal can be considered for instances of gross misconduct. This will often result in summary dismissal – immediate dismissal without the entitlement to notice or notice pay.

Step 6 – Confirm the outcome in writing

Once you have made your decision, confirm it in writing to the employee.

You’ll need to inform them of:

• The nature of the misconduct
• The level of warning they are being issued with, or whether they are being dismissed
• How long any warning will remain active
• If they are place on warning – the necessary changes in behaviour and the likely consequences of further misconduct
• In the case of a dismissal – the grounds for the dismissal
• Their right to appeal and the timescales they have to do this.

Step 7 – Right to appeal

For the disciplinary to be considered fair, the employee must be given an opportunity to challenge your decision.

Ideally you will have someone else who can hear this appeal, although this may not always be possible in a small business. If this is the case and you must hear the appeal yourself, be sure to be as objective as possible.

The appeal meeting should follow the same process as the original disciplinary meeting.

Small business disciplinary procedures

Disciplinary procedures in small businesses should also follow the ACAS code of conduct and the essential steps outlined above.

As a small business, it’s easy to think you’re not yet large or established enough to need a formal disciplinary procedure. But no matter your size, having a documented procedure in place for dealing with disciplinary issues will make it much easier, and quicker, for you to resolve issues.

While it might be tempting to try to ignore the misconduct or performance issue you find yourself facing, in the hope things will resolve themselves, in a small business, where working environments tend to be more close-knit, any unresolved issues can quickly be felt by everyone, bringing down the morale of the whole business. Having a procedure in place to fall back on will help you to address any ideas quickly and confidently before any bad feelings or inappropriate behaviour starts to impact on the rest of the workforce.

And no matter your size, if you find yourself facing a tribunal claim following your handling of a disciplinary situation, the courts will want to see that you have followed a fair process. If you have no formal, documented process for how you go about managing these situations, it’s much harder to defend yourself.

Small business disciplinary policy

As a minimum, small businesses should have a disciplinary policy that:

• Is written in simple, clear language
• Is easy to access by all employees
• Is understood by all employees
• Covers issues such as absence and use of facilities where misconduct may occur and provides examples of misconduct that would typically lead to disciplinary action
• Includes examples of gross misconduct that would typically lead to dismissal without notice
• Explains the action that will be taken if misconduct or gross misconduct has taken place

Try to manage the issue informally

Depending on the severity of the issue it’s usually best to try to resolve things informally and quickly before resorting to your formal disciplinary procedure, especially in a small business, where time and resource is likely to be limited.

Have a private discussion with your employee where you identify the shortcomings you observed in their performance or behavior.

Provide them with the opportunity to respond to your observations and discuss ways they would need to improve to resolve the situation. Make sure that any actions or targets are clear and understood by the employee, ideally confirming these in writing.

If it becomes evident through the course of your discussion that the issue may be more serious and formal action is required, be sure to adjourn the meeting until you can carry out a full investigation and arrange a formal meeting providing the employee with the opportunity to attend accompanied.

Prevention is better than cure

While it’s impossible to completely mitigate the risk of disciplinary issues arising, you can take steps to prevent them occurring.

Of course, making sure all your employees are clear on what your business considers misconduct in the first place to start. It’s not enough to have these written in a policy that no one knows about or how to find. You need to make the policy easy to access and read and ideally you want signed confirmation from your staff that they have read and understood what levels of behaviour are expected of them and what’s not permissible.

Secondly, fostering a positive, open work environment, where staff feel listened to and respected and managers are having regular communication with them, will help to reduce disgruntled employees behaving inappropriately, or help you identify potential problems before things escalate.

Tips when taking disciplinary action against an employee

• Keep things confidential – only share information that’s necessary for an investigation to take place and remind witnesses to keep the matter confidential.
• Act promptly – the sooner the situation is resolved the better for all parties involved. Overhanging anxiety and uncertainty could lead to poor performance or absence amongst employees involved.
• Keep records – it’s vital to document all your conversations and anything you have used as evidence in order to be able to defend your decision should it be challenged.
• Be transparent – clearly communicate potential consequences.
• Act calmly and objectively – be careful not to make snap decisions driven by emotions.
• Avoid arguments – disagreements should be acknowledged and noted without escalating into an argument.

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