An Employers Guide to Employee Disciplinary Procedures

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An Employers Guide to Employee Disciplinary Procedures

Here at Avensure, in the most frequent employment law/HR area, we are asked about employee conduct and disciplinary issues. So if you are an employer asking the question “what is a disciplinary procedure?” this article is here to help you.

Whether relatively minor or severe, misconduct matters need to be handled fairly and in line with the employer’s disciplinary procedure or the ACAS Code of Practice. There are 4 levels of disciplinary actions: issuing a verbal warning, written warning, suspension alongside an improvement plan, and termination of employment. 

Within this in-depth article, we will be focusing on the formal disciplinary process. We will be breaking down each of the central disciplinary procedures steps UK employers undertake when navigating the employee discipline process.  We will provide you with a clear guide and some top tips to develop an employee disciplinary procedure that works seamlessly while ensuring that you avoid the many pitfalls that can lie in wait when working through any disciplinary process you may encounter. 

We will begin this article by outlining what misconduct is and what it is not. We will also explain the purpose of a disciplinary procedure and how it can work if you decide to implement a disciplinary action process within your organisation. 

1. Gross Misconduct Disciplinary Procedure: What is Gross Misconduct?

Before we ask, ‘What are the steps in the disciplinary process?’ it’s essential to understand what conduct is. When we refer to conduct, we refer to behaviours that the employer expects from their staff. Misconduct refers to those behaviours that staff occasionally exhibit that their employer expects not to see.

Disciplinary Action For Conduct Or Performance Reasons

Before asking, ‘What is disciplinary action?’ We must understand the differences between poor performance and poor conduct (or misconduct) because there are different employee disciplinary procedures for dealing with each disciplinary action.

Put bluntly, misconduct is usually ‘can do, won’t do’, and poor performance (capability) is a case of ‘can’t do’, and it’s one of the main contributing factors to an employer taking disciplinary action. 

What Is The Difference Between a Conduct & Capability Issue in a Disciplinary Enquiry Procedure?

This is where it is essential to take employee misconduct and disciplinary procedure advice from us. When you look at the above ‘can do, won’t do’ versus ‘can’t do’, it seems pretty straightforward, but it is easy to apply the wrong label. 

When you contact us for advice in relation to implementing an employment act disciplinary procedure, we will ask you some questions not only about the employee’s behaviour, but we will also ask you for information regarding the employee, so it is a good idea to have their file with you when you call.

The first thing we want to do is find out what has happened. Misconduct concerns the breaking of a rule or procedure. For example, lateness, failing to follow instructions, rudeness to a client or colleague, and so on will help us formulate the necessary information needed for the disciplinary and grievance procedure. 

To establish if we are dealing with a conduct or capability issue so we can determine the correct disciplinary action process, we need to answer two main questions:

  1. Did the employee know about the employer’s disciplinary rules and procedures?

This is usually evidenced by them having signed to confirm receipt of the employee handbook, and they have shown through their past behaviour that they know the disciplinary rules, which is a straightforward path for any employer taking formal disciplinary action.  

  1. Are there any mitigating factors which could (reasonably) explain their misconduct?

This is where a disciplinary investigation is required, and we will explore the investigation stage of the formal disciplinary process, which we also discuss in more detail further down the article. 

For example, the employee has been rude to a client or colleague, but it transpires that they have just received some bad news, such as a member of their family being diagnosed with a terminal illness. Whilst this kind of mitigating circumstances doesn’t give someone free rein to behave badly, it would shed some light on why someone who is usually polite and courteous has suddenly behaved the way they have. In these situations, HR disciplinary actions are seldom brought forward.  

Perhaps they have a medical condition or disability that is affecting their behaviour- we would need to look into this rather than issuing a warning or terminating their employment; otherwise, you could be exposed to a discrimination claim.

Similarly, if we are investigating a breach of procedure and it transpires that the employee wasn’t aware of a recent change in procedure or could benefit from some additional training or support- here we are straying into the area of capability rather than conducting disciplinary action would not be appropriate.

What is the importance of a disciplinary policy?

Disciplinary policies should do several things:

  • It sets out the disciplinary rules and behaviours the employer expects from their employees
  • It gives examples of the kinds of behaviours the employer does not wish to see
  • It sets out how allegations of misconduct will be investigated and handled – the disciplinary procedure
  • It sets out who is responsible for carrying out those disciplinary procedures
  • The likely sanctions will be given for proven misconduct allegations, i.e., levels of warnings and their duration before the employee discipline process is actioned.  
  • The right of appeal against any employee misconduct and disciplinary procedure.

What’s included in a disciplinary policy?

As you can see, a disciplinary policy benefits the employer and the employee. It sets out your standards and expectations and gives you a disciplinary procedure to work to ensure that all cases are handled the same way because consistency is the key to avoiding bias and unfairness.

Disciplinary policies (including those drafted by Avensure for our clients) are built around the ACAS Code of Practice, which sets out the minimum disciplinary procedure steps that you are expected to follow to ensure fairness in a disciplinary situation. The ACAS Code of Practice are the benchmark disciplinary rules that Employment Tribunals will expect an employer to adhere to when implementing any employee disciplinary procedure.

A copy of the code can be accessed here.

Types of misconduct leading to employee disciplinary action?

There are three types of misconduct which can trigger disciplinary procedures: it is dependent upon the seriousness of that misconduct as to what level of employee disciplinary action it falls into.

  1. Misconduct

This usually concerns minor misdemeanours such as lateness (though this can be serious depending on the sector and the impact of the lateness), carelessness, which results in minor errors, and unprofessional conduct. Of course, this can lead to employee misconduct and disciplinary procedure being actioned in some instances, depending on the severity of the employee’s actions. 

You would expect to issue a lower-level warning for instances of misconduct, such as a verbal or written warning or an informal warning (letter of concern) where the misconduct has not been deemed severe enough to take formal disciplinary action and has been dealt with by an informal discussion.

  1. Serious misconduct

Many instances of lower-level misconduct can be bolstered up to serious misconduct. This is usually because the employee has committed several rule breaches or the impact on the company has been severe. For example, rudeness to a client has resulted in a formal complaint would bring about a disciplinary action process. Serious misconduct usually involves allegations which are serious but not serious enough to be classed as gross misconduct.

Serious misconduct usually results in a formal disciplinary action which includes a formal warning, a written warning or a first and final written warning depending on the severity.

  1. Gross misconduct

Gross misconduct is the big one! Cases of gross misconduct are rare and concern the most serious breaches of disciplinary rules and disciplinary procedure policies. They include theft, violence, fraud, health and safety breaches that could result in loss of life or serious injury, discrimination, etc.

Top tips for disciplinary procedures:

  • Ensure your disciplinary procedure is distributed to staff and managers- the employee misconduct and disciplinary procedure policy is useless if it is sat on a shelf collecting dust!
  • Be consistent– don’t be tempted to deviate from your employee discipline process – it’s confusing for the employees, and you will be accused of having ‘one rule for us and another rule for them’.
  • Conduct or capability? ‘Can do, won’t do’ versus ‘can’t do’ or ‘round peg, square hole’.
  • Make sure you seek employee disciplinary procedure
  • advice from us. Please quote your Client Account Number on all correspondence and telephone calls. 24-hour client advice line: 0800 151 2935.
auditor investigating corporate fraud using nw

2. Disciplinary Investigation is the Foundation of the Disciplinary Procedure Process 

A disciplinary process without a disciplinary investigation stage is akin to a house without foundations- weak.

The disciplinary investigation stage examines the facts behind the allegations against an employee. The person appointed to investigate disciplinary allegations is concerned with establishing the facts, i.e., the ‘who’, ‘what’, ‘when’ & ‘where.’

You should find out if there is any genuine mitigation which may help explain what is alleged to have happened.

The ‘why’ at this stage is none of your business.

The disciplinary investigation meeting

A disciplinary investigation meeting is the first step in investigating any disciplinary allegations.

This meeting is informal, so the right to be accompanied doesn’t apply, and you needn’t invite an employee to an investigation meeting in writing or give notice unless your disciplinary procedures state otherwise.

Stick to direct questions. Let the employee know the allegations and clarify that the matter is under investigation. Let them know that you are speaking to them to ascertain their version of events to assist you with that disciplinary investigation and associated disciplinary procedures. 

Does the employee have a right to see the evidence or know the names of any witnesses at this stage?

No. There is no requirement to produce evidence at this stage of the disciplinary procedure or the need to name witnesses.

As part of your employee disciplinary procedure, you should ask the employee if there are any witnesses they would like you to speak to, but you must stress that they should not go off and start investigating and talking to witnesses themselves.

Should I have a note-taker in the meeting?

Minutes will need to be taken in a disciplinary investigation meeting, even though it is informal. This serves as a record that you have carried out this vital stage in the disciplinary procedure, and it is also something we here at Avensure will need you to provide.

If you can have a note taker with you, then great, but it’s not essential. The main thing is that minutes are taken and can be used for any HR disciplinary actions which are taken. 

Please see our previous article on taking minutes here. 

Who should conduct an disciplinary investigation meeting?

Someone with the appropriate level of authority who understands your company’s disciplinary action process, especially if a suspension from work is potentially one of the HR  disciplinary actions taken. Please see our previous article on suspension from work here.

The main thing is to try and ensure that whoever does the investigation doesn’t go on to conduct the disciplinary hearing. Please note- that there may be exceptions for very small businesses.

Remember- within your disciplinary procedure you are investigating allegations

It’s very is very important to remember this during an employment act disciplinary procedure, and key to ensuring the investigation is fair at all times. 

Remember- You are not there to prove the case against an employee or dig up the dirt, trip them up, etc.

When carrying out a disciplinary investigation, you should focus on the whole picture, which means information that supports the allegations and that which does not.

If you go into a disciplinary investigation with a biassed mindset, your investigation will be biassed, and this will likely trigger the following:

  • If your investigation is biassed, the findings of that investigation will also be biassed.
  • Bias is the most significant factor in ensuring an employee is not treated fairly; if the employee is not treated fairly at the investigation stage, it sets the tone for any formal disciplinary proceedings which may follow.
  • A biassed investigation results in an unfair disciplinary stage and decision
  • If that decision is a dismissal, this could result in a costly tribunal claim

Don’t fall down the ‘rabbit hole of bias’ when conducting your disciplinary procedures – get this stage right, and don’t be tempted to rush- it will take as long as it takes.

In summary- A disciplinary investigation process should be:

  • Fair
  • Impartial
  • Objective
  • Keep an open mind- focus on establishing the facts, both for and against
  • Ensure that all disciplinary procedures are carried out by someone with an appropriate level of authority
CCTVEvidence

3.  Gathering Evidence & Witness Statements Are Essential Aspects of the Disciplinary Procedure  

The evidential stage of the investigation, specifically the gathering of evidence and witness testimony, is absolutely essential for the disciplinary procedure process. 

The most important things to remember when gathering evidence are:

  • Have an open mind
  • Remember- you are investigating allegations
  • You are not aiming to build a case against the employee- this is not a ‘witch hunt.’

Set your stall out to get to the truth and paint a picture of what happened. To do this, you need to look at all the evidence. This includes evidence which does not support the allegations against the employee.

Disciplinary Procedure Witnesses

During your employee disciplinary procedure, it’s crucial that when investigating allegations of misconduct against someone, any witnesses are identified and spoken to as soon as possible. The longer the gap between what is alleged in your disciplinary procedure process and when witnesses are spoken to, the greater the potential for memories to fade and hearsay begins to creep in.

It is also vital to ensure that all witnesses are spoken to as promptly as possible during your employee disciplinary procedure, including those who may not have heard or seen anything- if they were there, they need to be spoken to.

What if disciplinary investigation witnesses do not wish to come forward?

Witnesses cannot be ‘forced’ into coming forward for a disciplinary investigation, but there may be circumstances where they are duty-bound to cooperate, for example, in a care setting where there has been an allegation of abuse/ breaches of care standards.

Can disciplinary investigation statements be kept anonymous?

If witnesses don’t want to come forward because they fear reprisals, then you can keep their disciplinary investigation witness testimony anonymous temporarily.

However, the employee will have a right to know who has provided evidence against them, particularly at the formal disciplinary stages, because this is key to their defence and a fair procedure.

Should disciplinary investigation witnesses be interviewed or asked to write a statement?

Either is acceptable, but it is recommended that the disciplinary investigation witnesses are spoken to by the person investigating the allegations so they know what they are being asked to provide a statement for.

Do’s & don’ts of interviewing disciplinary investigation witnesses:

  • DO explain the purpose of the meeting with the disciplinary investigation witness, make clear it is a confidential discussion and must not be discussed outside the meeting
  • DO focus their attention on the material facts such as dates, times, where, what etc.
  • DO NOT seek personal opinions or indulge in hearsay.
  • DO NOT ask leading questions or put words into the mouths of the witness – let them tell you what they heard or saw in their own words.
  • DO ensure that the disciplinary investigation witness knows they may be held to account if they willingly provide information that they know to be false or misleading in some way.
  • DO ensure that their interview/statement is signed and dated

Disciplinary Procedure Evidence

Like witness testimony, any material evidence should be obtained as soon as possible during the initial disciplinary and grievance procedure. Again, remember that you are painting a picture with the evidence you obtain. Conducting a fair process is essential; you are not only looking at the evidence to support the allegations against the employee, but you should also obtain any evidence which may not.

What is classed as evidence?

Any evidence which may shed light on the allegations. Such evidence can include but is not limited to:

  • CCTV
  • Emails
  • Minutes from previous meetings
  • Receipts/financial records
  • Rules, procedures, and training records

Are there specific rules around the use of CCTV for disciplinary matters?

The employee does have a right to see the footage as part of your employee discipline process; you could show it to them during the investigation meeting or ahead of the disciplinary.

You should make sure that your employees know that CCTV is in operation and that it may be used for disciplinary investigation purposes.

Does an employee have a right to see the evidence at the disciplinary investigation stage?

During any disciplinary and grievance procedures, evidence MUST be provided to the employee by investigators before any formal disciplinary proceedings for them to present their case.

There isn’t a requirement to turn over evidence at the informal investigation stages but there shouldn’t be any surprises in the disciplinary hearing- we don’t store evidence ‘under our hats’ to trip people up. 

As the correct procedure for disciplinary hearing, evidence should be obtained and presented in a timely and transparent manner.

Please note- even if the employee has admitted the allegations against them, it is still important to obtain evidence!

disciplinary hearing

4. Disciplinary Hearings & the Final Step in the Disciplinary Procedure Process

Now we discuss the disciplinary hearing process and the finalisation of the disciplinary procedure process, specifically on how to carry out the correct procedure for disciplinary hearing, alongside some top tips and dos and don’ts.

What is a disciplinary hearing?

Once the investigation process is complete, the employee is invited to a formal disciplinary hearing if there is a case to answer.

The purpose of the disciplinary hearing is to allow the employee to formally respond to the allegations and any witness or material evidence. It is important that they have this opportunity to put forward a full explanation for the claims obtained by your disciplinary procedures together with any mitigation they wish to be considered.

Does a disciplinary hearing need to be arranged in writing with notice?

Yes. Unlike an investigation meeting, the disciplinary is a formal hearing. Therefore, written notice of a disciplinary hearing is required and should include the following:

  • The allegations
  • List any witness evidence which will be used in the hearing (all evidence must also be supplied with the invitation letter)
  • Sufficient notice. Unless your disciplinary procedures specify a minimum amount of information, you should give reasonable notice. This will depend on the case, but usually, it should not be less than 24-48 hours.
  • The statutory right to be accompanied by a colleague or a trade union representative
  • The potential outcome of the proceedings

The do’s & don’ts of a disciplinary hearing:

  • DO ensure that the venue is suitable without distractions
  • DO ensure that the purpose of the meeting is fully explained
  • DO ensure that you stick to the allegations as set out in the disciplinary hearing invitation
  • DO ensure that you keep the employee on track
  • DO ensure that before moving on to the following allegation, or before concluding the disciplinary hearing, the employee has said all they wish to say
  • DO NOT ask leading questions or put words into the employee’s mouth
  • DO NOT automatically discount or ‘shut down’ any mitigation that is raised because you don’t think it is relevant– ask the employee to explain the relevance of any mitigation to the allegations
  • DO NOT give the decision in the disciplinary hearing itself
  • DO NOT have the same person chair the disciplinary hearing and the investigation (there may be exceptions for very small businesses)
  • DO NOT badger or harangue the employee. If they don’t answer the question, by all means, ask it again but don’t create an environment that is hostile by repeating yourself unnecessarily.

What happens when an employee goes off sick before the conclusion of a disciplinary process?

Absence due to stress at work is common, particularly when someone is facing disciplinary allegations, particularly allegations of gross misconduct.

Depending on the circumstances, it may be appropriate to place the disciplinary on hold and, where necessary, obtain medical evidence or guidance to assess if it is reasonable to proceed.

What kind of mitigation could be raised by the employee?

Anything relevant. Examples could include a recent diagnosis of a medical condition or personal matters which may have affected their conduct.

They may raise a formal grievance- see the below section.

What happens when an employee raises a grievance before the conclusion of a disciplinary process?

It is common for grievances to be raised by employees facing disciplinary allegations, and it’s tempting to see this as a delay tactic.

However, depending on the nature of the grievance, it may be appropriate to place the disciplinary on hold whilst the grievance is investigated.  For example, if a grievance is raised citing racial harassment or bullying.

However, if the grievance is directly linked to the disciplinary allegations, it may be appropriate to deal with the concerns as part of the disciplinary process. For example, a grievance that simply disputes the allegations can be addressed in the disciplinary hearing.

It’s essential to seek advice at every stage of a disciplinary process, especially where grievances have been raised.

Making the decision following completion of the disciplinary hearing

Following the formal disciplinary hearing, the person conducting the disciplinary hearing must make their decision. There are several factors to weigh up to ensure that decision is fair and reasonable:

  • Are you able to make a decision? If not, you may need to carry out further disciplinary investigations, which means the disciplinary hearing will need to be reconvened after any follow-up investigation is completed.
  • If you doubt the employee’s explanations, then the hearing may not have been thorough enough and may need to be reconvened. This may be because the case is complex and requires more than one hearing.

What are the possible outcomes of a disciplinary hearing?

  • If the allegations constitute gross misconduct and they have been proven, the employee could be summarily dismissed, i.e., without notice. Please see our previous article on gross misconduct.
  • A formal warning is issued. This could be anything from a verbal or written notice to a final sign (where the employee is already in respect of written notification) or an extended final warning. A first and final warning may be issued for allegations of serious misconduct.
  • If there is no case to answer, no formal sanction is given, or an informal warning (letter of concern) may be issued.

Communicating the outcome of the disciplinary hearing

The decision following the completion of the disciplinary hearing must be issued in writing, and that written decision must contain the following:

  • The reasons why the allegations have been upheld
  • How any mitigation has been considered
  • The effective date of termination if the outcome is dismissal or the date and duration of any formal warning
  • The right to appeal, the timescale for appeal and to whom the person should appeal

The right of appeal applies to all formal disciplinary sanctions against an employee, from a verbal warning up to dismissal and is applicable irrespective of the length of service. For more information on the appeal stage, please see our employers guide to appeals here.If you have any questions about disciplinary procedures or are currently experiencing issues with a current employee discipline process. Please call our 24-hour client advice line: 0330 100 8704 for some free impartial advice.

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