6-STEP GUIDE | How to conduct a fair and legal disciplinary procedure

When it comes to disciplining employees, failing to follow a fair procedure and investigate properly can result in a whole host of legal trouble.

Sacking an employee is a serious matter, which is why an Employment Tribunal will want to satisfy itself that the decision to dismiss was reasonable and reached after a fair and robust investigation into the issue.

Unfortunately for employers, it’s frustratingly easy to bungle the disciplinary process. You may have a perfectly valid reason to dismiss, but unless you can show that you have followed a fair procedure, you may find yourself facing a claim for unfair dismissal.

We’ve produced a free Employer’s Definitive Guide to Misconduct and Disciplinary Procedures, which answers some of the common questions employers have when dealing with employees’ misconduct. The guide offers expert tips and warnings, and explains how to ensure you’re carrying out a fair process, following best practice and abiding by the law.

Free Download: Definitive Guide to Misconduct & Disciplinary

Discover how to handle the disciplinary process like an HR expert.

To supplement our expert guide, this article explores the aims of a disciplinary procedure, outlines the six-step process employers should follow to ensure they stay on track, and highlights the legal pitfalls you may encounter along the way.

What is a disciplinary procedure and what is it for?

A disciplinary procedure is a process for dealing with perceived employee misconduct. Depending on the severity of the transgression, there are different avenues an organisation may take to deal with the misconduct, ranging from an informal discussion with a manager to more formal proceedings that follow a set process as laid out in your Employee Handbook.

The purpose of a disciplinary procedure is to ensure that employees reach the standards expected of them, both in terms of their behaviour and their performance. Despite the name, initiating disciplinary procedures is not all about reprimanding employees; it’s also about working with employees to maintain high standards of conduct and competence, and encouraging improvement if they fall below these standards. It also provides an opportunity for employees to tell their side of the story.

What sorts of behaviour warrant disciplinary action?

Common issues raised as the subject of a disciplinary meeting include poor timekeeping, unauthorised absence, and email, internet or social media misuse.

Misconduct comes in many different forms; it may be one trivial incident, repeated minor misconduct that progressively turns into a more serious offence, or an act of gross misconduct. Acts of gross misconduct are those deemed to be serious enough to destroy the relationship of trust and confidence between the employer and employee, making the working relationship impossible to continue. Examples include theft, fraud, harassment, violence, serious breaches of health and safety rules, damage to company property, and serious incapacity caused by alcohol or drugs. In such cases, it may be legally acceptable to dismiss an employee without notice; however, it’s always best to take advice from an Employment Law specialist before acting.

How to conduct a disciplinary procedure in 6 steps

1. Ask yourself whether formal proceedings are necessary

Before rushing into disciplinary action, you should first ask yourself whether you can resolve the issue through informal channels, or whether disciplinary proceedings are justified in the circumstances.

For example, you may be confronted with an employee who has committed one minor act of misconduct, such as turning up late to work, but who otherwise has a good disciplinary record. In this situation, common sense would dictate that formal action is likely to be a disproportionate response and will most likely do more harm than good; a quick word on an informal basis is likely to be enough to resolve the issue and prevent the problem from escalating further.

2. Investigate the alleged misconduct

Once you decide formal proceedings are necessary, you are duty bound to investigate. Conducting an investigation is crucial in terms of determining the fairness of any subsequent dismissal, as it is a central part of the legal test a Tribunal has to consider.

Depending on the nature of the allegation, the investigation may be very short or very complicated, lasting a couple of days to a few weeks. For instance, if you have caught someone taking money out of the till, the investigation into the act itself is likely to be relatively short. However, if you discover that stock is missing but have no idea who the culprit is, a longer investigation may be necessary to identify who is responsible and prove wrongdoing.

The aim of this stage is to fact-find: to determine what happened, when it happened, where it happened, why it happened, whether anyone else is involved, and whether anyone else saw what happened. The investigation process typically involves:

  • Interviewing witnesses. This may be colleagues or customers. Sometimes it will be necessary to interview the accused as part of the process, but not always, especially if the issue is straightforward and the evidence speaks for itself.
  • Gathering evidence. This can take a variety of forms, including CCTV footage, attendance sheets, email correspondence, telephone or computer records, and witness statements. Investigators must consider evidence which both supports and challenges the allegations made rather than seeking to prove their assumptions. This means looking for evidence that an employee may not be guilty of misconduct, as well as proof of their guilt. This is central to a reasonable investigation which, in turn, is vital to a fair dismissal.

While the investigation is being completed, you may need to consider whether the employee should be suspended on full pay. This is only permitted in certain circumstances, for example, if you think the employee poses a risk to your business or other members of staff or that they could tamper with evidence. However, the time they are suspended for must be as short as possible and kept under review. It must also be made clear to the employee that the suspension itself is not a form of disciplinary action.

A recent decision by the Court of Appeal has suggested that an employer can suspend an employee without breaching trust and confidence, an implied contractual term of all Contracts of Employment, if it has “reasonable and proper cause” for doing so.

3. Set up a disciplinary meeting

Once the investigation is complete, if there is no case to answer, then no further action needs to be taken. However, if there appears to be sufficient evidence to indicate misconduct, the investigating officer must step out of the picture and pass the evidence onto a disciplinary officer.

It’s important, where possible, that the person who conducts the disciplinary meeting is not the same person who carried out the investigation. If this isn’t possible, or you would prefer to trust the process to an independent professional, Ellis Whittam’s expert HR Consultancy team can conduct investigations and meetings for you.

The disciplinary officer is responsible for inviting the employee by letter to a disciplinary meeting. The invite letter must:

  • Ensure that the employee is given reasonable notice of the hearing;
  • Inform them of their right to be accompanied by a fellow colleague or a recognised Trade Union representative;
  • Enclose all of the evidence you are seeking to reply upon; and
  • Be clear about the allegations and the potential outcomes of the meeting (for example, a first written warning, dismissal, etc.)

Step 4: Conduct the meeting

At the disciplinary meeting, you should explain the allegations, go through the evidence, and give the employee the opportunity to comment upon it. They may raise things in their defence that require further investigation afterwards; if so, you must gather additional evidence, and consider it, before coming to a decision (if appropriate).

Step 5: Make a decision

Once all the evidence has been considered, you should adjourn the meeting to decide whether disciplinary action should be taken, and what this should look like.

When determining the most suitable action to take, it’s important to ask the following questions:

  • Is the sanction fair and reasonable in the circumstances?
  • Are there any mitigating circumstances?
  • How have similar cases been dealt with?

You may decide to take no action, issue a written warning or final warning, dismiss the employee, or take other types of action short of dismissal, such as demotion.

Actions such as demotion can only be taken if it is expressly included in the employee’s Contract of Employment or the employee agrees to it.

6. Inform the employee and let them appeal

Once the meeting has been held and any additional investigations complete, you must confirm your decision to the employee in writing, setting out why the allegations are proven and the appropriate sanction. The employee must be given the chance to appeal if they feel that the decision you have reached is unfair or unreasonable.

If an employee appeals:

  • An appeal meeting must be arranged. The person responsible for the appeal should be someone who has not been involved in the investigation or disciplinary meeting.
  • You should remind the employee of their right to be accompanied.
  • At the appeal meeting, you should run through the employee’s grounds of appeal and consider each in turn. You may be required to investigate some additional points following the appeal if you are unable to confirm or answer something based on the evidence already gathered.
  • Once that process is complete, the decision of the appeal must be confirmed in writing to the employee. This decision will be final.

5 things to keep in mind when conducting a disciplinary

Make sure you consider and investigate issues an employee raises in their defence. This is crucial to a fair procedure and is often overlooked.

The steps in the disciplinary procedure generally follow graduated steps including a verbal warning, written warning, final written warning, and dismissal. However, in cases of gross or serious misconduct it is permissible to go straight to stage 4 of the procedure.

Before rushing straight to dismissal, consider other potential sanctions. Alternatives might include a transfer to a different part of the workplace, different role, or demotion.

You cannot normally discipline or dismiss an employee for whistleblowing.

In most cases, employees will need at least two years’ service before they can make an unfair dismissal claim; however, there are some exceptions. You cannot, for example, dismiss an employee on the basis of a protected characteristic regardless of their length of service, and there are certain types of dismissals that are automatically unfair. It’s therefore wise to seek advice from an Employment Law specialist first.

Need support dealing with disciplinary?

Don’t forget to download our free Employer’s Definitive Guide to Misconduct and Disciplinary Procedures for more information and guidance on conducting a fair disciplinary process. If you would like to speak to a professional about a particular challenge you’re facing, our qualified Employment Law Advisers are available to provide straightforward, solutions-focused advice and support to help you resolve the issue quickly, without leaving your business exposed to legal risk. Simply call 0345 226 8393.