This guide is based on UK law. It was last updated in June 2011.
All employers need to know how to discipline their employees fairly. Mishandling disciplinary issues gives rise to a huge number of employment tribunal claims every year including for breach of contract, unfair dismissal and discrimination.
This Guide sets out the basics of how to discipline fairly for misconduct, but employers should always be careful to comply with their own procedures if they have them. Employers should also follow the ACAS Code of Practice on Disciplinary and Grievance Procedures (16-page, 57KB PDF) which Tribunals take into account when assessing the fairness of a dismissal. Failure to do so could result in any compensation awarded in a subsequent claim brought by the employee being increased by up to 25%.
When can you discipline an employee?
An employer should follow a proper disciplinary process if it believes that an employee may be guilty of misconduct. As far as possible, the aim of the disciplinary procedure should be to improve conduct, rather than simply to punish wrongdoing. Sometimes it will be clear that an allegation of misconduct is being made. For example, if an employer believes an employee has been emailing trade secrets to a competitor, this is an allegation of misconduct and any action taken should be in line with proper disciplinary procedures.
If an employee is underperforming at work however, this should normally be treated as a capability issue and disciplinary action will rarely be appropriate. Instead, the employee should be taken through a capability process designed to improve performance.
Similarly, absence because of ill health is not a disciplinary offence, unless the employer has some evidence that the employee is malingering, and the employer should follow an absence management process, rather than disciplining an employee who has been absent from work. It is therefore essential to distinguish between capability issues which should be dealt with under a capability process and true disciplinary matters. Only allegations of misconduct should be dealt with by a disciplinary process.
What should you do before disciplining an employee?
Before any disciplinary hearing is convened, the employer should appoint an Investigator to investigate the allegations on the employer's behalf. The employer's disciplinary procedure may specify who this person should be, but wherever possible it should be someone relatively senior who will have an understanding of the issues.
The investigation should be conducted without unreasonable delay before memories fade and should ascertain the facts with a view to recommending whether there is a disciplinary case to answer. The Investigator should speak to the employee concerned and to any witnesses and should review any documents (such as emails, notes, CCTV) which may be relevant to the allegations. Wherever possible any witness interviews should be conducted face to face. Statements should be taken and witnesses should be asked to sign and date them.
The Investigator should also explain to witnesses that they may be required to attend any disciplinary hearing. Once the Investigator has completed the investigation they should report on whether they consider there is a disciplinary case to answer. It may be that the matter can be dealt with informally or that no action is necessary.
How should you convene and hold the disciplinary hearing?
If the Investigator recommends that there is a disciplinary case to answer, a disciplinary hearing should be convened without unreasonable delay while giving the employee proper time to prepare. The employer should appoint a senior employee to act as the Chairman of the hearing. If at all possible, the Chairman should be someone who has not been involved with, or acquainted with, the facts of the case and in any event should not have acted as the Investigator.
The chairman should be and be seen to be as impartial as possible. The employer's own disciplinary procedure (if it has one) may specify the person who should chair such a disciplinary hearing.
The Chairman should then write to the employee convening the disciplinary hearing (within any time limits specified in any internal procedure) providing:
- full details of the allegations that have been made and why the conduct is not acceptable, what will be discussed at the hearing, including a clear indication that the hearing is a disciplinary hearing and that depending upon the outcome of the hearing, disciplinary action may follow;
- the date, time and place of the hearing;
- details of who will be present and what their function will be, including details of who the company will be calling as witnesses;
- confirmation that the employee is entitled to be accompanied at the hearing by a fellow worker or trade union official;
- confirmation that if the employee intends to have fellow employees as witnesses, they will be given reasonable time off work to attend the hearing;
- any relevant evidence, including witness statements from company employees; and
- an assurance that no conclusions have been reached or will be reached until the hearing has taken place.
The purpose of this letter is to ensure that the employee against whom the allegations have been made has a proper opportunity to put their side of the case and to respond fully to any allegations which are being made. This may require the attendance of the employer’s witnesses to answer questions from the employee, although in many cases it will be possible simply to use their statements.
In cases where a witness does not want to be identified and does not therefore want to attend the hearing to give evidence (such as if the matter is extremely sensitive or the witness fears for their safety), it may be possible to use anonymised witness statements. However, as this will limit the employee’s ability to question the evidence, employers should be wary of going down this route and should seek legal advice.
At the hearing, the Chairman should:
- explain the purpose of the hearing to the employee, identify those in attendance and their role and explain the allegations which are being made;
- ask the Investigator to state the case against the employee (including calling any witnesses and explaining any documents on which the company is relying);
- allow the employee and their companion to ask questions about the company's case;
- invite the employee to put their side of the story across, including by calling any witnesses they have and explaining any matters they want the Chairman to take into account by way of mitigation (for example an apology, or other circumstances of which the company was previously unaware); and
- ask the employee whether there is anything further they wish to say.
After he or she has heard all the evidence, the Chairman should consider his/her decision. If the Chairman has reached an honest belief in the employee's misconduct based on reasonable grounds, then disciplinary action may be justifiable.
It is important that the disciplinary action taken is proportionate to the misconduct which has occurred so before deciding whether to impose a disciplinary sanction and what sanction to impose (e.g. first warning, final warning, dismissal), the Chairman should consider carefully all the background to the case, including what the employee did; the impact of their actions; any action previously taken in similar cases; and the employee's former disciplinary record. The ACAS Code recommends that employees should be given at least one chance to improve before a final written warning is given. Employers should only dismiss without giving prior disciplinary warnings for cases of serious misconduct.
The Chairman should also carefully consider whether any other action, such as training, might be more appropriate than disciplinary action.
Unless the employer's own procedure specifies otherwise, the Chairman does not have to give a decision at the hearing and he will normally adjourn to consider the decision. In any event, the Chairman should write to the employee (within any specified time limits) to inform them of the decision which has been made. If the Chairman has decided that disciplinary action is required, the letter should also give the employee details of the right to appeal against the decision. The employee should be told to whom such appeal should be directed and any relevant time limits.
What if the employee wants to appeal?
The employee should be given a right of appeal against any disciplinary decision. Indeed, appeals can be a very useful tool for employers who may have made mistakes in the early stages of a disciplinary process, to remedy any errors they have made.
Once the employer has received an appeal from an employee they should appoint a chairman to hear the appeal. The Appeal Chairman should, wherever possible, be someone who is senior to or at least as senior as the original Chairman and ideally they should not have been previously involved in the matter concerned. Unless any new evidence or circumstances have come to light since the original investigation, it will not normally be necessary to hold a fresh investigation. Rather, the Appeal Chairman should review the original Investigator's report and all the documents relating to the case. He should then invite the employee to an appeal hearing without unreasonable delay to discuss the grounds of the appeal. Again, the Appeal Chairman should write to the employee specifying:
- the date, time and place of hearing;
- who will be present at the hearing and what their role will be; and
- that the employee has a right to be accompanied.
At the appeal hearing the Appeal Chairman should ask the employee to explain the grounds of the appeal and to introduce any new evidence that has come to light. The original decision-maker should be asked to comment and to explain the reasons for the original decision
Once the Appeal Chairman has decided whether or not to uphold the appeal, he should write to the employee giving his decision and specifying whether or not the employee has any further opportunity to appeal. If the company's internal procedures give employees this right those procedures should be followed.