Discipline (Premium)

Discipline – how to manage discipline at work

Disciplinary Rules and Procedures

The first step is to have clear written disciplinary rules and procedures? Why?

You are required by law to have disciplinary rules and without them you are likely to breach an employee’s statutory rights.

Employees’ Legal Rights

Employees have a legal right to:

  • Be accompanied by an appropriate companion at a disciplinary meeting. This can be a work colleague or a trade union representative.
  • Be clear about the nature of their misconduct, any improvement that is required, what the penalty would be if allegations are founded and what the outcome will be if there is a repetition of the behaviour within a defined timescale. This should be clearly set out in any invitation letters and formal written warnings.
  • Request a written statement of the reason(s) for his or her dismissal where the employee has more than one year’s service (two years for employees recruited after 6 April 2012) or is pregnant

Setting Standards

Apart from meeting your legal obligations, having clear rules and procedures will make day to day management much easier. They will also allow you to:

  • Set clear and consistent standards of behaviour for everyone. This gives you a clear, strong mandate for dealing fairly with breaches of discipline by employees.
  • Ensure employees understand what types of conduct or behaviour are unacceptable in the workplace and the possible consequences if they fail to meet them. This means employees cannot avoid the issue by claiming they didn’t know or understand they were important.
  • Assist in defending any unfair dismissal claims where you can show you have followed the ACAS Code of Practice

What is the difference between Rules and Procedures?

The Rules are the standards of behaviour you as the employer expect of your employees. The Procedure is the process which will be used if there is a breach, or suspected breach of the disciplinary rules.

What should the Rules cover?

Your disciplinary rules, as a minimum, should cover:

  • absence
  • timekeeping
  • performance
  • health and safety
  • discrimination, bullying and harassment
  • smoking, and alcohol and drugs consumption
  • use of company facilities and equipment for personal reasons in work time
  • internet, email, telephone usage
  • personal appearance

Your rules should make it clear that if an employee doesn’t meet the minimum standards of conduct, you may begin disciplinary action against them. They should also give examples of what behaviour you will treat as gross misconduct. This is misconduct judged so serious that it’s likely to lead to dismissal without notice, such as:

  • serious bullying and harassment
  • drunkenness or drug abuse
  • fighting at work
  • fraud or theft
  • gross negligence or insubordination
  • serious breaches of health and safety
  • wilful damage to property
  • use of the internet or email to access pornographic, obscene or offensive material
  • bringing the organisation into disrepute

It should be made clear that the list is not exhaustive. What counts as gross misconduct varies depending on the type of business and the role or seniority of the employee.

It is also good practice to illustrate what counts as misconduct and some categories of gross misconduct may also be treated as misconduct if they are more minor eg insubordination can be minor or gross misconduct.

General conduct rules can be useful as they set out your particular company culture and cover issues which do not fit easily into standard discipline such as poor personal hygiene.

What should a Disciplinary Procedure cover?

The ACAS Guide says good disciplinary procedures should:

  • be in writing
  • specify to whom they apply
  • be non-discriminatory
  • provide for matters to be dealt with without undue delay
  • provide for proceedings, witness statements and records to be kept confidential
  • indicate the disciplinary actions that may be taken by the employer
  • specify the levels of management that have the authority to take the various forms of disciplinary action
  • provide for workers to be informed of the complaints against them and, if possible, to be given all relevant evidence before any meeting
  • ensure that, except for gross misconduct, no employee is dismissed for a first breach of discipline
  • ensure that disciplinary action is not taken until the case has been carefully investigated
  • ensure that employees are given an explanation for any penalty imposed
  • provide a right of appeal to a more senior level of management and specify the procedure to be followed.

How do I put this into Practice?

The lists above are useful guidance, but how are these goals achieved, what is reasonable, who should undertake what role, what are the timescales and, most importantly, what are the problems and pitfalls? HR Adviser disciplinary Rules and Procedures have been developed to reflect actual workplace experience and UK and European case law as well as the basic statutory requirements. For detailed practical disciplinary rules and procedures which are written for you

click Link to HRA disciplinary rules and procedures in handbook

Fair Procedures

If you fail to follow a fair procedure you will almost certainly lose an unfair dismissal claim, even if the employee is in the wrong. You may have any compensatory award reduced but you will have to pay the basic award, not to mention the cost and time in going to tribunal.

Conduct or Capability?

Sometimes it is difficult to know whether an employee is failing to meet the standards because they won’t apply themselves (Conduct which is disciplinary) or because they can’t do what is required of them (capability which requires consideration of training). Historically both types of failure were treated as disciplinary but it is now considered good practice to treat them separately. They are basically the same procedure but there is more accommodation for training and improvement in a capability procedure. For more information see capability in poor performance guide and capability procedure/handbook. A failure to distinguish which procedure to use could lead to a procedural fault and an unfair dismissal, not to mention putting unfair stress on the employee who is not capable. It could also lead to a failure to give the correct reason for the dismissal on the ET3 (Employers’ response to an unfair dismissal claim).

Elements of a Fair Procedure

Confidentiality

All aspects of any disciplinary action are confidential to the employee. The information should be kept on a need to know basis and anyone involved should only have the minimum information that need. It should never be the subject of gossip; documents should not be left unattended or stored in an insecure manner. Confidentiality cannot be guaranteed to witnesses wishing to remain anonymous. It can be guaranteed whilst it is under the control of the employer, but if it becomes a tribunal claim the tribunal will want access to such documents (they can order them to be released) and they will come out in court.

Who should deal with disciplinary matters?

For minor offences the first stage is an informal discussion which is usually conducted by the line manager. If this does not resolve matters or the offence is more serious then formal procedures should be instigated. For detailed procedures see disciplinary policy (subscription) or handbook.

The general principle in the ACAS Code of Practice (as applied by tribunals) is that each stage of the formal procedure should be conducted by a different manager ie one each for investigation, discipline and appeal. The Code does recognise that this may not be possible in very small companies or where the alleged offence has been committed at a very senior level. If it is an owner company with them being the only manager the Code says that they should do their best to be impartial. If it is not possible to have three independent managers and two roles have to be combined, it is best to have the same manager investigate and conduct the disciplinary meeting and keep an independent manager for the appeal. This is because the disciplinary meeting is still part of the investigation as the decision has not yet been made. It is permissible to appoint an external consultant to deal with one level of the process and our consultants have extensive experience of dealing with disciplinary matters at each stage at all levels up to and including Chief Executive. If you would like to know more about this please contact us for consultancy.

Informal Action

Sometimes a quiet word at the right time to let an employee know they have overstepped the mark is all that is needed to get them back on track. If the improvement is not sustained or it is too serious a matter, then you will need to consider formal action. Before taking any action you should undertake an investigation. This can make keeping good working relationships difficult so be as discrete as possible. Make a personal note in a document (not the employee’s personnel file) of the dates you spoke to them and what it was about and any response. This helps if you have to move to formal procedures as employees often don’t realise the extent of their wrong doing. For instance, the employee is frequently late. If you say “you have been late a lot recently” no doubt they will disagree and say only once or twice, and you end up discussing the number of absences not the problem of the absence. If you say “you have been late 5 times in the last month on these dates….” That is fact and you then discuss the reasons for the lateness. Informal chats do not count towards a fair dismissal, only formal meetings, so do not continue at the informal level too long as you will have to start again.

Formal Action

Investigation

There is sometimes confusion about investigation in that it is believed that you must have an investigation meeting to have a fair procedure. This is untrue; the Employment Rights Act 1976 does not say this but the employer must investigate the matter before taking disciplinary action. There is little point in holding an investigation meeting based on documented facts and then asking the same questions again in a formal disciplinary meeting. This is now clear in the ACAS Code of Practice which makes an investigation meeting optional. However, conducting an investigation before holding a disciplinary meeting is not only fair to the employee it is essential in order to defend any subsequent tribunal claim by showing you were reasonable. This could be documents, computer records or witness statements.

An investigatory interview is not the same thing as a disciplinary interview and line managers need to take great care to differentiate between the two. The manager should make it clear to the employee when an investigatory interview is being set up what its purpose is. The key difference between an investigatory interview and a disciplinary interview is that:

  • the purpose of an investigatory interview is to establish what happened, eg where and when incidents allegedly occurred, especially where it is one person’s word against another’s.
  • the purpose of a disciplinary interview is to ask the employee to put their side of the story and decide what to do about it, eg whether to discipline or dismiss the employee.
  • It is very important not to allow an investigatory interview to stray into disciplinary territory, eg to express criticism of the employee, pass judgments or make premature decisions about what the outcome should be.

Prior to holding an investigatory interview with the employee, the line manager should prepare a list of questions based on what is known or believed to have happened. During the interview itself, the manager should:

  • state what is known or believed to have happened and give the employee the opportunity to comment, ie to agree or disagree and/or state an alternative version of events
  • stick to facts (as far as they are known) and avoid expressing opinions
  • point out and question any discrepancies between different versions of events
  • when listening to what the employee has to say, try to distinguish between facts and assumptions/opinions
  • not be afraid to challenge what the employee has to say where appropriate
  • keep an open mind, whatever the evidence might be
  • take care not to criticise the employee, express disapproval or pass judgement
  • try to make sure that the whole story is uncovered
  • be patient with the employee — it may be necessary to repeat key questions or go back over ground previously covered
  • be careful not to turn the interview into a disciplinary hearing or the employee’s rights may be breached for instance, if they are not accompanied at the investigation interview.

Once the investigatory interview is over, the line manager should produce a written statement summarising the information the employee has given.

Employee Rights during Investigation

An investigation is an essential pre-cursor to disciplinary action, but it does not, of itself, form part of the formal disciplinary procedure (although it is always in a procedure to ensure it is not missed). This means that the employee does not have the same rights in an investigation meeting as a disciplinary meeting. They do not have the right to be accompanied or be given notice of the allegation being investigated. This allows the employer to call an employee into an investigation meeting, without notice, if this aids the investigation. This could be where the employer wants to get statements before employees can collude on a story (where perhaps there has been a fight), or where they may tamper with evidence for example delete files from a computer. In some cases, you may need the employee off the premises in order to investigate, see below.

It is, however, considered good practice to give an employee some notice and the opportunity to be accompanied where this does not compromise the investigation. If you do, this will make it less stressful for the employee (who may well be innocent and have to continue working for you) and it will help show a tribunal that you are a reasonable employer.

Suspending an employee while an investigation takes place

For certain serious offences you may need to suspend an employee while you investigate the issue, or you need them away from the workplace so that they cannot interfere with the investigation eg delete or alter evidence or collude with or influence colleagues or if the investigation may take some time. They should continue to receive their full pay whilst suspended. You can only suspend an employee without pay if this is allowed in their contract of employment and generally, suspension without pay would be reserved as a disciplinary penalty after the decision has been taken. At this stage the employee is presumed innocent so there should be no element of punishment.

Suspension should not be done lightly or automatically for instance because you feel uncomfortable with facing the employee before the disciplinary meeting. This is not a valid reason for suspension and could lead to a claim for breach of trust and confidence. Similarly, the suspension should be for the minimum time necessary so an employee should be allowed back to work before the meeting if the investigation is complete. Employees should not be left on suspension for very long periods while you “get around” to dealing with the disciplinary issue. Apart from it being inhumane to leave someone in suspense longer than is necessary, it could again be breach of confidence and, worse, may cause the employee to become ill with stress. This is a more difficult area to manage and should be avoided for both the employee’s and the company’s benefit. Link to managing absence -stress

If suspension is necessary you need to advise the employee. If this is initially verbally, it must be done in private but should be confirmed in writing. Link to letters. If you need to escort the employee off the premises do this discretely so that it is not obvious to other employees. If you need to tell the other employees why the person is absent, never say they are suspended but say they are absent for personal reasons.

How to Investigate

Investigate as soon after an incident as possible, particularly if witnesses are involved before memories fade. Carry out as detailed an investigation as possible by obtaining as many facts as you can from records, documents, emails (both manual and electronic) and witness evidence. You should do as much as is reasonable, which means you should do enough to be confident there is something to discuss, but you do not need to be exhaustive. For instance, if ten people saw an incident you don’t need to interview all of them but you do need to get the views of several. The number will depend on the degree of consistency in the stories; do more if they vary much. Facts from documents are very good evidence so gather as much of this type of evidence as you can to pre-empt a claim that “I only did it once” but if one incident is more serious then you can focus on that for example an employee keeps missing deadlines for clients but one particular one was so serious it lost the company a very good client.

If you don’t have much factual evidence, perhaps where it is one person’s word against another’s, or it is out of character or you can see there may be other explanations, it may be easiest to hold an investigation meeting with the employee to see what they have to say. You may decide that you do not want to take any further action or you may not be satisfied with their explanation and decide to move to formal disciplinary action. Whatever the outcome make a note of what was discussed and keep a copy and confirm this in writing with the employee.

Witness Statements

Witnesses must be able to speak from their own knowledge and they should have personally seen or heard or have knowledge of the incident under investigation or have other relevant information. You must specifically check this with them don’t assume. If it is what others have told them, that is hearsay and not valid. One reason for interviewing witnesses quickly is to prevent the phenomena that if someone repeats a story often enough they start to behave as though it is their story.

In disciplinary cases, the employee under disciplinary measures has the right to see the witness statements and you need to tell the witness this and check that they are prepared to proceed. If they are, it should be in writing, signed and dated. The witness can either write down what they saw or heard or the person conducting the investigation can interview then and write it down. The latter has the advantage of ensuring the relevant points are covered but care must be taken not to lead the witness by suggesting the answers to them. For more on interviewing techniques see our recruitment section.

Whichever method is used, you need to warn the employee that the statement may be challenged at a later date and you should test it for clarity and ambiguity.

Witnesses are often reluctant to give evidence against a colleague and you cannot force someone to be a witness. If they will not put their name to a signed witness statement you need to ascertain whether they will tell you what they know anonymously. You need to probe to find out why they want to be anonymous. Do they have an ulterior motive; do they have a grudge or hidden agenda? If you are satisfied with their reasons, you can give the employee the unsigned statement. However, care needs to be taken that it is not possible to work out who made the statement from the evidence for example there were only two people present. You may choose to summarise the information and put the points to the employee yourself in the meeting and see what they say. There is a problem in that if the employee does not know who has made the statement they cannot provide reasons why it may be biased or otherwise incorrect. As a result, anonymous statements have little credibility in Tribunals and should be treated with caution and less weight must be placed on them.

Some organisations allow witnesses to attend the meeting and be cross examined. This only tends to happen in unionised organisations, often in the public sector. In non-unionised private sector companies, employees are often reluctant to come forward at all.

Checklist – The line manager should:

  1. reassure the witness that the purpose of the interview is to gather information
  2. explain that his or her assistance is important, and why
  3. seek to uncover every aspect of the “story”
  4. ask probing questions and not be afraid to wait for answers
  5. avoid leading questions, ie those that indicate the expected answer
  6. be wary of generalisations or vague, woolly statements — instead ask for specifics
  7. clarify whether information being given by a witness is a known fact or is his or her opinion
  8. ask the witness (where appropriate) whether he or she is completely sure of what he or she saw or heard, or whether there could be an alternative interpretation
  9. refrain from drawing over-hasty conclusions.

The manager should also consider objectively whether a particular witness’ version of events is likely to be reliable. There are various reasons why a particular witness may not be reliable, for example he or she may:

  1. be genuinely mistaken
  2. be exaggerating
  3. be basing his or her evidence on opinion or assumption, rather than on fact
  4. be allowing emotion to get in the way of rationality
  5. have a personal grudge against or dislike of the accused employee.

Criminal offences as a disciplinary issue

Criminal and employment law have differing burdens of proof and you should not dismiss someone just because they have been charged with or convicted of a criminal offence, whether the offence was at work or outside of work. You should consider the seriousness of the offence and whether it affects their suitability to continue working for you. It may be unrelated to their ability to their job.

If it doesn’t, decide whether you can keep their job open during their absence. You need to take into consideration what has happened with regard to other employees, for instance, someone who has a long term sick absence. Also, as women on maternity leave have the right to have their job held open for a year, you may need to be able to justify why you couldn’t do the same for an employee who has a custodial sentence of up to a year.

If it does impact on their ability to do their job then follow your normal disciplinary procedure. If a criminal charge has been made, don’t put off taking appropriate, fair and reasonable disciplinary action just because the outcome of the prosecution isn’t yet known. In some cases this can take months or even years, and as the burden of proof is different and harder in criminal proceedings, it is perfectly possible to have a fair dismissal even if the person is found not guilty or even not prosecuted.

Follow a fair procedure and base your decision on a reasonable belief following an investigation into the circumstances.

Notify the Employee

Once you have completed your investigation you need to tell the employee the outcome. Link to letters If you have decided that there is a disciplinary case to answer, you need to write to the employee and ask them to attend a disciplinary meeting.

Arranging a Disciplinary Meeting

The Acas Code of Practice states that the letter must be in writing and you should never rely on a verbal invitation either face to face or on the telephone as this would be a procedural fault and it would be difficult to prove you had done so.

The letter must give details of the time and venue for the disciplinary meeting. It must contain sufficient information about the alleged disciplinary offence for the employee to understand it and to be able to prepare to answer the allegations. It must set out the possible consequences of the offence and include copies of any written evidence, eg witness statements, emails or other documents. The employee must be informed of his or her right to be accompanied at the disciplinary meeting. They have the right to postpone the meeting for up to five working days if their representative cannot attend. This is their only right; they do not have the right to postpone because their solicitor is not available for instance. For a sample letter click Link to disciplinary letters section.

A disciplinary meeting should be held without unreasonable delay but the employee should have sufficient notice of the meeting to allow them to prepare. You also need to balance this time to prepare against the fact that waiting for disciplinary action is stressful. If they are about to go on holiday or it is a very simple matter with little evidence to review, you can ask them if they would prefer the meeting earlier, but they should tell you in writing (email is fine).

There may be logistics problems where an employee (whether as the subject of the disciplinary investigation, a representative or a witness), works in isolated locations or on shifts. In such circumstances, it would be good practice to allow time off with pay for the employee to attend the disciplinary hearing. Alternatively, the hearing could be held during the employee’s shift or at the location where they work.

How do I deliver the Letter?

If the employee is in work you can hand it to them or post it to their home address if you prefer. If they work at a different location and there is no suitable manager on site you should post it to them.

If the employee is suspended, you will need to send a letter by post to their home address. If you have already obtained permission to use their personal email, it is possible to send a letter of invitation as an email attachment to save time. However, there is no guarantee that this will be delivered and read so you must also send a confirmation in the post.

If the employee is off sick, especially if this is with stress, you need to use post only as any contact by a manager by telephone or email could be construed unfavourably. In such cases, if you are concerned that they may not cooperate with the process, then send two copies of the letter, one by normal first class post and one recorded delivery. Employees who wish to avoid a difficult situation sometimes choose not to sign for post or later claim the letter was lost in the post. A tribunal is unlikely to believe that both letters failed to be delivered. For employees off sick see dealing with pre meeting problems 

Delays to the Disciplinary Meeting

Failure to attend

If the employee is genuinely unable to attend the disciplinary meeting, or simply fails to attend, you should offer them a reasonable date and time as an alternative. Equally, if you are unable to attend a meeting, you must offer the employee a reasonable alternative date and time. If the employee’s companion cannot make the rearranged meeting, the employee has the right to postpone the meeting for no more than five working days after the day you originally proposed. The employee should propose the alternative date and time which is acceptable to them and their representative, and this should be met where practicable.

Sick absence

An employee may well become anxious or stressed during the disciplinary investigation and may go off sick as soon as they receive the letter asking them to attend the disciplinary meeting. This is often accompanied by a doctor’s note stating that they are absent due to work -related stress.

The employee may not be well enough to work, but they may be well enough to attend a disciplinary meeting. You should suspend the process until matters are clearer.

Short absence

If they are absent for a few days self-certificated and then return or they produce a doctor’s note for a physical illness with e reasonable return to work date, you should wait for them to return to work and then write to them inviting them to another meeting.

Longer absence

If they do not return at the expiry of the first doctor’s note, you should start to make enquiries about their ability to attend a disciplinary hearing. Doctor’s notes are often issued a month at a time and it is very easy for time to run away waiting for them to return at the end of each note. If the reason for absence is not work related stress, and the employee is not seriously ill, you can write to the employee and ask them to attend a disciplinary hearing. You should make any adjustments to assist this for example, if they have a broken leg, offer to have a taxi to collect them and take then home or, if that is not reasonable, offer an alternative location (hotel) nearer to their home. If they say they are unable to attend, and you do not accept their reason, you need medical opinion before you can progress. This means obtaining the employee’s consent for you to write to their Doctor and ask if they are fit to attend the disciplinary meeting, even if they are not well enough to do work. For in-depth advice please refer to our managing absence section.

If the employee refuses consent, or the Doctor says that they are well enough to attend the meeting but they refuse, you need to write and invite them again to a disciplinary hearing. If they refuse again then you need to invite them again but this time you also explain that if they do not attend you will have to hold the meeting and make a decision in their absence. Advise them that they could submit their explanation in writing or send a representative (the same person that could accompany them to the meeting) to put their case on their behalf. Link to letters. The message is that the problem will not go away by not facing up to it. The ACAS Code of Practice states that where an employee is persistently unable or unwilling to attend a disciplinary meeting without good cause, the employer should make a decision on the evidence available. Persistently has caused some difficulties in interpretation, but it is generally considered that they should be offered at least three opportunities with the consequences being set out in the final invitation.

More commonly, the Doctor will support the employee and say that they are not well enough to attend the meeting. Unless they have a physical rather than a mental incapacity, these should be treated as for stress below. For guidance on what to do if the Doctor does not give a clear opinion and how to avoid this, see our advice on managing absence and a obtaining a Doctor’s report.

How long should I wait?

Any decision about how long you can wait will depend on your size and resources, with the larger employer being expected to wait longer before moving to dismissal. This should be considered against the impact on the business of the absence; key roles may cause more of a problem. However, if you have generous sick pay rules you would need very firm evidence about the employee’s prognosis before dismissing before the end of contractual paid sick leave (as opposed to statutory sick pay). For further advice consider consulting an expert adviser.

Stress related absence

If the employee produces a doctor’s note for stress at any point, the process is similar to long term absence but extra care should be taken in handling these cases so as not to exacerbate their illness and lay the way open for negligence claims. When communicating with the employee you should write to the employee rather than telephone or email as this is less intrusive into their personal life and will not breach any Human Right to privacy and a family life (unless invited to do so by the employee, and then confirm in writing). As above, send two copies of any letters one by first class post and one recorded delivery with an explanation for this incorporated into the letter.

If they do not return after the first doctor’s note you need to decide what would be a reasonable time to wait, (see above). You should not invite them to a reconvened meeting without a medical opinion so you will need to obtain their consent to this Link to managing absence -medical consent letter and letter to doctor. Further action will depend on the medical advice but if the employee is unable, or unwilling to attend a disciplinary meeting in a reasonable time scale, then you can proceed in their absence (see long term absence above). It will be necessary to obtain more than one medical report if the absence continues for more than a month after the previous one.

Change to Capability Procedure

There is a danger of exacerbating an employee’s illness and increasing the possibility of constructive dismissal or negligence claims, by pursuing disciplinary action for an employee signed off work with stress. If the employee is genuinely ill, has been absent for a significant period of time with doctor’s notes (particularly in the case of stress), and the prognosis and return to work is unclear, it is now better to postpone the disciplinary action and deal with the absence under the capability procedure. For further advice on managing long term sick absence consult our premium advice (subscription) or handbook.

Decision

If you decide to suspend the disciplinary action and deal with the employee’s absence under the capability procedure you should inform the employee in writing of this decision and then follow the capability procedure.

Preparation for the Meeting:

  1. Preparation is the key in dealing professionally with a disciplinary meeting. If you are prepared you will feel more in control and confident about dealing with the unexpected. You need to be clear about:
  2. What the problem is and the points you need to cover,
  3. What your role and the procedure is,
  4. What rights the employee has,
  5. How to deal with problems if they arise and most important of all,
  6. The facts; have as many as you can muster. The easiest disciplinary meetings are those where you can take the employee to factual evidence, the most difficult are when it is one person’s word against another’s.

Pre-Meeting Checklist:

  1. Check your procedures, especially if they have a union representative accompanying them.
  2. Check, and have available, the facts from your investigation, including employee records and any witness statements.
  3. Consider what explanations may be put forward and investigate them first if possible.
  4. Arrange for a note taker. It is crucial to have someone else take notes at a disciplinary meeting unless it is for something very simple like late attendance, but even then, you don’t know what might come up in mitigation. Why? see link to notes section below
  5. Ensure there will be a private room for the meeting. Make sure it is available for enough time; add on more than you think you will need.
  6. Make adjustments for an employee with disabilities if necessary.
  7. Consider an interpreter if language is a difficulty. If you use a fellow employee be sure you can trust them to translate accurately.
  8. Invite the employee to a disciplinary meeting in writing.
  9. Check with the employee if they intend to bring witnesses or submit witness statements or any other written representation.
  10. Check your witnesses are available, if you are bringing any, and for up to 5 days after the proposed date in case the employee postpones
  11. If the employee being disciplined is a Trade Union representative you must advise the Trade Union.
  12. Plan the meeting to ensure all points are covered and that you retain control. Put them into a checklist for use in the meeting to make sure you haven’t missed anything, particularly if the employee has a tendency to digress.

Conducting a formal disciplinary meeting

Meetings should always be in private and you should ensure that the meeting will not be interrupted. Where rooms have to be booked, make sure the room is available for plenty of time.

Plan the meeting. See managers’ checklist above for conducting a disciplinary meeting.

  1. Introduce everyone and explain why they are there and in particular the role of the companion which is to help the employee put their case, to adjourn and confer with the employee but they are not allowed to answer direct questions put to the employee.
  2. Check the employee has received all the documentation and that they understand the allegations. Check they are prepared to proceed unaccompanied if that is the case. This needs to be minuted.
  3. Explain the reason for the meeting and how it will be conducted.
  4. Go through the allegations and go through the evidence. If there is more than one allegation take them one at a time with the least serious first. If you deal with the most serious allegation first you may find the less serious allegations are not properly covered as they seem unimportant. However, if the serious allegation is not upheld, you may find that you have insufficient information on the less serious ones to make a decision
  5. Ask open non-judgmental questions (Remember Rudyard Kipling I keep 6 honest serving me they taught me all I knew, their names are what and why and when, and how and where and who). This allows the employee to tell the story in their own words and without prompting from you. You should have an open mind at this stage, there may be reasons you are unaware of which may change your mind about whether it is a disciplinary matter eg domestic/health problems or the penalty (mitigation). Ask closed questions to check for facts, eg “did you actually see him hit John?” For more on interviewing technique see link to recruitment section
  6. Give the employee a chance to state their case and to respond to your questions and the allegations. Try not to interrupt too much. Firstly they won’t feel they have had a chance to explain and it will look as though they didn’t in the notes, which will be in front of a tribunal if they claim. Try to adopt a more “in sorrow” than “in anger” tone of voice. Certainly don’t get angry, or be sarcastic or end up in an argument. If they have a weak defence, then that is their explanation. Don’t challenge it and say, for example “surely you must have known…” just say thank you for your explanation and move on.
  7. Show you are listening to what they are saying; keep eye contact, nod occasionally, make your own odd personal note, ask integrated questions ie ask follow up questions to what they have said rather than work down a tick list of questions.
  8. You must, however, get all the facts and this might mean probing for more information or checking for understanding of what they are saying.
  9. Summarising and checking are very good ways of keeping control of the meeting. If they are talking about irrelevancies or repeating themselves then saying “I am sorry to interrupt but could I just check I have understood what you are saying correctly” or “Can I just check, are you saying that….” They don’t mind being interrupted as you are showing that you are listening.
  10. Take your own note of any special circumstances which might mitigate in their favour or which might need further investigation.
  11. Summarise what’s been discussed and highlight any issues that need to be investigated further
  12. Always ask at the end of the meeting if there is anything more they would like to add.

Note Taking

It is extremely difficult, in fact almost impossible, to take sufficiently detailed notes yourself as well as listen to what the employee is saying and think of follow up questions and points of challenge. For disciplinary interviews the notes need to be almost verbatim as they will be crucial evidence for an appeal or tribunal. A very typical tactic is for the employee to challenge the notes at a later stage so detailed notes are very useful.

You should ask the employee to read and sign the notes as accurate after the meeting before they leave. If they are long, or to confirm notes signed at the meeting, send a copy of the typed notes to the employee after the meeting and ask them to agree they are an accurate reflection of what was said. A common concern of employees is that they are being asked to agree with what management said, you should explain that they are just being asked to confirm that management did say it. They may want to make corrections and if these are factual mistakes then these should be incorporated and a revised copy sent to them. However, they may not change their evidence because they have thought better of their answer. If possible, ask them to sign that they agree them but it is not necessary. Some employees think it is and try to use it as a bargaining tool. The notes should be accurate and unbiased but they are management’s notes. For more information on note taking and recording see link to recruitment

A copy of the notes should be kept in the employee’s personal HR file.

Handling Problems

The employee does not arrive

If you have a mobile number for them try contacting them on this. If not, or they do not respond try a home number if you have one. Check for transport problems before abandoning the meeting too soon. If after half an hour or so you have not heard or made contact then you will need to reconvene the meeting. See Letters section

The employee raises a complaint or grievance prior to the disciplinary meeting

At some point during the disciplinary process, the employee concerned may raise a complaint which may constitute a grievance. Depending on what the complaint is, it may be appropriate to temporarily suspend the disciplinary process in order to deal with the grievance. Where the grievance and disciplinary cases are related it may be appropriate to deal with both issues concurrently and hear what the employee has to say about both. See paragraph 44 of the ACAS Code of Practice.

However, if the grievance is about their line manager (or the person undertaking the investigation) and this affects the justice of the allegations you should suspend the disciplinary process and deal with the grievance first. For instance, they may assert that the manager has been bullying or harassing them or is biased or prejudiced in some other way. If the grievance allegations against the manager are upheld then you may need to take disciplinary action against the manager. If the investigation exonerates the employee the disciplinary action should be dropped. If there is still a case to answer then a different, independent manager should be appointed to conduct the disciplinary meeting. Even if it is found that the complaint was unfounded, in the interests of appearing fair, it may be sensible for another manager to continue if this is possible.

Keeping Control of the Meeting

There are many things which can go wrong in a disciplinary meeting the most common ones are:

Problem: The employee uses tactics to wrong foot you and gain control such as not answering the question asked but the one they want to answer, or asking you questions or saying other employees do it.

Solution: Refer them back to the allegations and say that we are not here to discuss that point but the allegation(s) set out in the letter and at the moment we are discussing the allegation that [restate allegation]. If they avoid answering the question tell them that they need to answer the question asked which is –[repeat question]. If they persist in not answering then tell them if they don’t answer the question then you will need to make a decision in the absence of their explanation which is not in their best interests. With regard to other employees tell them that we are here to discuss their behaviour not their colleagues and any dealings between the company and other employees is confidential.

Problem: The employee brings in a written statement (usually prepared by a solicitor) and refuses to answer questions.

Solution: Unless it is very short, explain that they should have produced this prior to the meeting for you to read and that you will not be able to read it now. Explain that you cannot ask questions of a statement and that this is an internal procedure and it is in their best interests to cooperate in the disciplinary meeting and to answer questions.

Problem: At this point they may ask to leave to speak to their solicitor

Solution: In the interests of progressing the meeting allow them to make a call in private, set a rough time to reconvene the meeting.

If they still insist on not speaking try some gentle questions to see if they can’t resist joining in and answering. It will feel very rude and strange to them to keep quiet. Ask them why they don’t want to answer questions, explain that at this stage no decision has been made and reiterate it is much better if you can discuss it with them so that you fully understand their position. If they still refuse to answer, make sure this is all in the notes close the meeting and tell them you will read their written submission and make a decision based on that.

Problem: Ineffective or inappropriate questioning by the employer

Solution: have pre-prepared questions based on the allegations and the facts. Put the allegation to the employee and ask them to explain why they did or did not do/say something or to explain or comment on evidence such as why was that item claimed on your expenses, or can you explain how/why …Avoid leading questions ie ones where you make it obvious what answer you want. For detailed guidance on questioning see link to recruitment section
Problem: The employee becomes angry, argumentative or upset or their companion does.

Solution: If it is the companion, speak in a low calm voice and tell them that their behaviour is inappropriate and if they do not behave properly they will be asked to leave the meeting.

If it is the employee, allow them a small amount of time to vent if angry or distressed, but not if they are being argumentative. Keep calm do not react by getting angry yourself, keep your voice low and speak slowly and look at them. Empathise by saying “I can see that you are upset/angry, what exactly is the problem?” Use summarising or checking techniques; so you feel that ….Once they have calmed a little say that you understand this is difficult for them (empathy again, this takes away a door for them to bang on) but it is important that you understand what has happened and why. Then ask a fairly non-controversial question to get them talking. If this outburst is at the end of the meeting move to the future and explain what will happen next. In dire circumstances, adjourn the meeting for 10 minutes to allow them (and possibly you) to cool down.

Problem: The employee raises a complaint or grievance in the meeting.

Solution: If it is unrelated to the disciplinary allegations explain that you (or someone else) will arrange a separate meeting to discuss this but this meeting is not the appropriate place. Make sure it happens. If they complain about you, or say that they have been bullied by other employees into doing whatever they did, you will need to adjourn the meeting. The procedure in this case is the same as a complaint made prior to the meeting as above. If they complain that you are prejudiced or biased in some way you must stop the meeting and then a different manager should conduct the grievance investigation into their complaint. If it is upheld, then another manager should assess whether the disciplinary allegations still stand. If not the disciplinary action should be withdrawn. If it is found that the allegations still hold then another manager should be appointed to conduct the disciplinary hearing if possible and they should re convene the meeting. Even if it is found that the complaint was unfounded, in the interests of appearing fair, it may be sensible for another manager to continue if this is possible.

Problem: The employee becomes ill in the meeting.

Solution: This very much depends on how ill and what it is. If it is just feeling faint or a distressed panic attack ask them what they would like to do. If they have had this experience before they may well know how to handle it. If they just need a break, water or fresh air do allow this. If they have a companion ask them to take them out, if they don’t ask them would they like someone else to be with them and arrange for this if they do. It may be that you just need to leave them in the room for a short adjournment. If you do leave the room, take your papers with you including the notes. The note taker should note this and the time you stop and reconvene. If it more serious eg heart attack or a diabetic coma, you may need to call for medical help. If the employee has a medical condition they may need to get their medication. Arrange this for them. Even if the employee is used to managing their condition eg angina or epilepsy, the meeting should still be postponed and rearranged at a later date.

Informing the employee of your disciplinary decision

Following a disciplinary meeting, you should inform the employee as soon as possible in writing of your decision.

The Decision- Disciplinary action you can take

  • Drop the issue completely – If it is clear that the employee has given a satisfactory explanation bring the meeting to a close and take no further action.
  • Apply a disciplinary penalty – a written or final written warning, or dismissal.
  • transfer them to another job
  • demote them
  • fine them, eg by not paying a bonus that they might have been eligible for
  • suspend them without pay – this is not very common and would mean that you lose the employee’s services for a time and is not recommended as it is open to challenge.

To avoid potential employment tribunal claims for breach of contract, you should not take the action in points 3-6 unless you have a clause in the contract of employment or your disciplinary procedure allowing you to do so.

In making your decision, take into account factors such as the employee’s previous record, their length of service any similar previous cases and any special circumstances. Whatever your decision, you must be able to justify it in the interests of fairness.

If you decide that the disciplinary allegations are upheld then you must write to the employee setting out this decision and also include:

The disciplinary penalty you plan to impose,

  • The reasoning behind your decision. This should be as detailed as possible, particularly where the penalty is dismissal. Explain why you have believed one piece of evidence or person over another and why you have not accepted any mitigating factors the employee may have put forward. This may help in dissuading the employee from making a tribunal claim.
  • If the penalty is less than dismissal, the specific improvement that is required, if any, or the standard expected in future,
  • How long any warning is going to remain in force
  • What will happen if they continue to perform or behave poorly, and in the case of a final warning, the fact that a further disciplinary offence could result in dismissal.
  • Their right of appeal and how this should be carried out

A copy of this letter should be filed in the employee’s personal HR file. Link to decision letter in letters

Warnings

There is no set time period in law as to how long a disciplinary warning should stay live on an employee’s record but an indefinite warning is unlikely to be considered reasonable by an employment tribunal and could result in an unfair dismissal. The ACAS guide suggests 6 months for a warning and 12 months for a final written warning.

Once this time has passed the warning is expired and should not be taken into account in deciding the penalty of a subsequent disciplinary offence. It may however, be taken into account when considering any mitigation as to whether to reduce the penalty. Where there is evidence of a pattern of satisfactory behaviour whilst a warning is in force only to lapse as soon as it expires this can be taken into account in deciding on the length of the warning.

In exceptional circumstances a warning could be indefinite for example where an employee was found to have discriminated or harassed an employee and dismissal was an option, but they were not dismissed. Clearly this type of behaviour should never be repeated.

Pitfalls in the Disciplinary Process

Mistakes in the Investigation

Previous warnings, whether live or expired, cannot be taken into account in deciding whether a new allegation should be made. Any concerns about disciplinary standards should be investigated and the decision to proceed to a disciplinary meeting should be based on the facts of each individual case.

The only exception is if there is a significant body of previous allegations of a similar nature so as to form a pattern. For example, complaints of harassment have been made against an employee on a number of occasions by people who could not be aware of the other complaints, but no action was taken due to lack of concrete evidence. There comes a point where the employee should be asked to explain this.

Failing to investigate and hold a disciplinary meeting for cases of gross misconduct. Summary dismissal means without notice not without a disciplinary procedure.

Mistakes in the Disciplinary hearing

The meeting should deal only with the facts in this case and the employee should only be asked for an explanation in relation to these issues. Avoid brining up past disciplinary action at this stage or it will be difficult to argue that you did not have them in mind when coming to your decision.

Do not take into account any previous disciplinary warning in deciding if this particular allegation warrants a disciplinary penalty. It must stand on its facts alone.

If the employee raises something new which has not been investigated, this should dealt with, either by a short adjournment in the current meeting or by investigating at the end of the meeting. If the investigation uncovers new evidence this has to be put to the employee for them to comment on so the discipline meeting should be reconvened.

Mistakes in The Penalty

Taking into account expired disciplinary warnings but ignoring other mitigating circumstances which balance it out.

Not considering what the penalty has been in other similar cases. You should be consistent unless there are material differences.

Action other than a Disciplinary Penalty

If you feel that the employee’s misconduct was not serious enough to warrant a formal disciplinary penalty you could:

  • provide counselling or training to help resolve the issue
  • Issue an informal warning if you feel a formal warning is too severe, but note this cannot be kept on their personal HR record.
  • Dismissal as a disciplinary action
  • The most severe disciplinary penalty is dismissal and generally is reserved for employees who have a live final written warning on file. Normally you should not dismiss for a first offence, except where the employee is still on probation or the offence is one of gross misconduct.
  • Old disciplinary warnings which are time expired should not be used in the “adding up” process.

Summary Dismissal

In gross misconduct cases, (see disciplinary rules above) you may be able to dismiss an employee without giving notice or pay in lieu of notice. This is called summary dismissal and should only be considered for very serious offences. This does not mean instant dismissal on the spot without any investigation. An employee must still be given the opportunity to explain themselves, and a failure to hold a meeting to allow them to do so will be procedurally unfair in a tribunal claim for unfair dismissal.

The contract ends immediately with a summary dismissal and there is no need to wait for the outcome of an appeal before dismissing summarily. If the appeal overturns the decision to dismiss the employee should be re-engaged on the same terms and conditions and with their continuity of employment made continuous with their previous service.

Holding an Appeal Meeting

An employee has the right to appeal against the decision you make after the disciplinary meeting and they should be advised of this right in the written notice of your decision. The letter should also tell them the deadline by which they need to let you know whether or not they want to appeal. This timescale should be set out in your disciplinary procedure.

If the employee does appeal, you must try to hold the appeal meeting without unnecessary delay. The invitation to the appeal meeting should confirm the employee’s right to be accompanied as for a disciplinary meeting. Link to letters, invitation to appeal hearing

The principles for holding an appeal meeting are generally the same as for the initial disciplinary meeting but in the appeal it is for the employee to state the grounds on which they wish to appeal. Many employees appeal is simply a statement that they disagree with the decision, but this is not enough, they need to say why they disagree. If the employee has not set out their grounds of appeal clearly enough to understand them, you should ask them to clarify. This could be in writing prior to the meeting. However, often the employee is unclear about their reasons, so the appeal manager may need to seek clarification by questioning in the meeting itself. The common grounds of appeal are:

  • There is new evidence
  • There is a procedural fault eg a witness or other evidence is missed out
  • The investigating and or disciplinary manager was biased
  • The decision is perverse based on the evidence
  • The sanction was too severe
  • Format of the Meeting

An appeal meeting can be a review or a re-hearing of the evidence. This will depend on the basis of the appeal. If the grounds are the penalty is too severe a review is satisfactory but if the disciplinary manager is accused of bias, discrimination or some serious personal fault the appeal manager should re-hear the disciplinary evidence and allow the employee to explain fully.

Who should conduct the Appeal Meeting?

Ideally the person dealing with the appeal should be a different person, and, where possible, more senior to the person at the initial meeting so they would be confident in overturning the original decision.

In small organisations, ACAS recognise that there is often very few managers so it may not possible for a more senior manager to conduct the appeal but, if possible, it should be a different manager or an external consultant. Link to consultancy page Where there is only one manager, for example an owner business, and the person conducting the appeal meeting also heard the first meeting, they should act impartially and make sure they review the original decision carefully. The reasoning for the decision should be carefully documented and kept for the duration of any warning or for a minimum period of four months after any dismissal.

After the meeting, you should write to the employee with your decision and the reason for it as soon as possible. If the decision is final, your letter should make this clear. Where you procedure allows for a further level of appeal you should advise them to whom they should apply and within what time frame. See link to letters

Appeals to external bodies

Some industries have procedures for dealing with appeals agreed between employer bodies and trade unions. This should be stated during the disciplinary procedure. The construction industry is one example of where this happens.

Dealing with delays to the appeal meeting

You should deal with delays to the appeal meeting in the same way that you deal with delays to earlier disciplinary meetings.

Let the employee know as soon as possible of any delays to the appeal process which are due to the employer. If you don’t, an employment tribunal could increase any compensation it awards to the employee.

What is a dismissal?

We are all familiar with a dismissal where the employer terminates the employment relationship, but sometimes this is ambiguous and there are other forms of dismissal where a claim to a tribunal can be made. The following are dismissals in law:

  • Express dismissal by the employer
  • Constructive dismissal- the employee resigns in response to the employer’s behaviour which is so serious as to be a breach of contract
  • Non-renewal of a fixed term contract
  • Employment contracts may be terminated by other means and these are not classed as a dismissal:
    • Resignation by the employee
    • Termination by agreement (difficult to persuade a tribunal of this except for very senior employees)
    • By operation of law (this is an event which occurs to end the contract rather than the employer or employee; for example, the death of the employee, dissolution of a Partnership, receivership, closure or transfer of the business.
    • Frustration – where the contract is terminated through no fault of either the employer or employee or it becomes impossible or unlawful to perform it is terminated by operation of law. Possible frustrating events are long term ill heath, a new disability or imprisonment. However, these are contractual concepts and employment law in these areas has significantly affected the employees’ rights. It is not safe to just say that a contract has ended by operation of law, you should seek advice.

Keeping Records

Written records should be made and kept of all disciplinary interventions, whether formal or informal. Although initial discussions may well be informal, it is important to keep notes of them, both as a record of what was discussed (to avoid any future doubt or denial) and as evidence of any support given to the employee (where appropriate). This is particularly important should a claim for unfair dismissal ultimately be brought before an employment tribunal.

The record should show as a minimum:

  • the time and date the discussion took place
  • the key matters that were discussed
  • the key responses put forward by the employee
  • any relevant mitigating factors put forward by the employee
  • any agreed action points
  • whether or not there was a formal outcome (eg a written warning).

Under the fifth data protection principle, personal information should not be kept for longer than is necessary. The Employment Practices Code advises employers to keep personal information if there is a valid reason for doing so and set periods for retention. The information may be needed for references and perhaps for redundancy selection.

The Code also recommends that disciplinary records should not be immediately available to anyone who has cause to see the employee’s file but should be restricted to those who need to know.

Unfair Dismissal

Employees who meet the qualifying criteria (2 complete years of service) can make a claim for unfair dismissal to an Employment Tribunal. Most employers who lose at a Tribunal do so on a procedural fault.

Automatically unfair Dismissal

However, there are some dismissals where the employee does not need any qualifying service to bring a claim. These are automatically unfair dismissals if the tribunal finds they occurred.

It is also automatically unfair to select an employee for redundancy on these grounds. They are quite numerous but fall into the following broad categories. Any reason connected to:

  • Pregnancy or maternity leave
  • Other family rights eg Paternity, parental or adoption
  • For wishing to assert a statutory right eg the right to be accompanied, take dependant’s leave or request flexible working
  • Union or Health and Safety activities
  • A Transfer of Undertakings (TUPE)
  • Whistle blowing
  • Undertaking certain Public duties

Following the steps above will significantly reduce this risk.