Blog
How to implement the disciplinary procedure in the right way
Published 29 October 2024
The history of disciplinary cases will be littered with aggrieved employees protesting and passionately maintaining their innocence, which is why navigating the process can be a challenging journey.
A disciplinary process enables an employer to address, deal with and respond to any performance concerns or allegations of misconduct levelled against any member of staff.
Every employer should have its own disciplinary policy. Parts of the procedure and wording may vary to suit a particular business, but overall the principles should be the same.
The policy should reflect the ACAS Code of Practice guidance, which outlines the minimum standards of fairness for employers and employees [1] cited 29.10.24
The Code provides good practice guidance, it is not law, but employment tribunals do take it into account, and there can be significant consequences for both an employer and employee for failing to adhere to it.
A tribunal can increase or decrease compensation awards by up to 25 per cent if either party has unreasonably failed to comply with the Code.
As an example, the Employment Appeal Tribunal upheld a decision to award a 25 per cent uplift in compensation for unfair dismissal in the case of a director of partnerships at a property company. The tribunal ruled the employer did not observe the ACAS Code guidance. The dismissal was considered a sham redundancy, and the grievance process was found to be equally flawed. [2] cited 29.10.24
An employee’s compensation can be reduced by up to 25 per cent if they unreasonably fail to follow the Code e.g. decline to take part in the grievance process or attend disciplinary hearings without a valid reason.
The disciplinary procedure can be complex and not straightforward for many different reasons.
It is an unwelcome process that can trigger varying degrees of mental and emotional stress and be anxiety-inducing for anyone involved, it must be legally compliant and has the potential to completely destroy a working relationship.
Such challenges demonstrate why it is essential for any disciplinary procedure to be well-structured, fair and reasonable, and conducted with empathy regardless of any allegation made.
Here we take a look at key parts of the disciplinary procedure, their significance and at how the process should be conducted.
Three-point guide on the importance of the disciplinary procedure
- A recognised and established disciplinary policy should be communicated to all employees. It helps to ensure they know exactly what to expect from the process and that it is used equally and fairly. Crucially it helps to make sure any decisions made by an employer are just and unbiased.
- Producing a disciplinary procedure with expert guidance and input, helps any business to comply with employment laws and regulations. It provides a safeguard against legal challenges and the risks of significant financial penalties, which can be imposed if the policy is utilised unfairly.
In 2023/24, there were 650 claims that received compensation for unfair dismissal and the maximum award was £179,000 and the average (mean) award was £14,000 [3] cited 29.10.24
- Any employee informed they will face formal disciplinary action is highly likely to be unhappy at the news. The very nature of the process in that the individual is being accused of doing something wrong and breaching policy, has the potential to seriously harm any working relationship. Especially if the employee is adamant they are innocent and have not done anything wrong.
An employer in properly and fairly managing disciplinary issues can demonstrate to staff that it does value fairness and justice. It can help to ensure employees have trust and confidence in a process, which is crucial because it can prevent matters from escalating.
The key stages of a disciplinary procedure
Suspension
An employee can be suspended from work if it is considered necessary and appropriate to do so.
It should not be an automatic measure or knee-jerk reaction to an allegation. It should only be in situations that can include, if an allegation is serious, there is a risk to other employees or the investigation or the employee is subject of criminal proceedings affecting their ability to perform their duties. Suspension can be confusing for employees and the most common questions they will ask include:
- Suspended from work pending investigation what are my rights?
Suspension is usually with full pay; the reason for the decision should be explained and confirmed in writing; your absence from work will be obvious to colleagues but a suspension and reason for it should be kept private and confidential; and you retain your employment rights and you should be supported by your employer.
- What can I do if I feel the suspension is unfair?
If you believe your suspension is unfair you should, review the disciplinary policy before raising it with your employer. Explain why you believe it is unfair and ask for it to be reviewed.
If you are unhappy with your employer’s response seek advice from a trade union representative, if you are a union member, or from our Employee Support Centre on if it is appropriate to raise a grievance [4] cited 29.10.24
- What should I do while suspended?
Stay calm, do not act impulsively, and stick to the terms of your suspension e.g. stay away from the workplace and do not contact colleagues.
Make sure you understand any allegation; review the disciplinary policy; if you are invited to a disciplinary hearing use the time to prepare your case; and take care of your physical and mental health taking advantage of any support available.
Informal approach
Most disciplinary policies will suggest using an initial informal approach to disciplinary matters where practicable, it is an approach advised by ACAS.
In some cases a private and constructive conversation between employer and employee can be enough to resolve a concern.
For example. employers will always want to address poor timekeeping and it is often a situation, which in the first instance can be addressed informally.
Investigation
If an informal approach is not suitable, the matter should be investigated with a view to establishing the facts.
The investigation should be impartial, approached with an open-mind looking for evidence to both support any allegation and to support the employee’s case, and it should be thorough and fair [5] cited 29.10.24
Invite to a disciplinary hearing
If the investigation establishes that there is a case to answer, the employee will be invited in writing to attend a disciplinary hearing.
The letter should clearly explain any allegation or performance concern. All evidence should be provided along with the letter, which should also include the potential outcome of the hearing e.g. written warning or dismissal.
Disciplinary Hearing
The hearing provides an opportunity for the employee to fully respond to the case against them. Both employer and employee can present their evidence and arguments.
The employee has a statutory right to be accompanied by a work colleague or a trade union representative [6] cited 29.10.24
Disciplinary hearing outcome
The employer will make a decision based on the evidence presented and provide the outcome in writing, sometimes an outcome can be given verbally and then followed up and confirmed in writing.
Where an employee is unhappy with an outcome or believes it is unfair, they can appeal against it.
Most common problems with the disciplinary procedure
Employers not being consistent in the handling of disciplinary matters can lead to allegations from employees of unfair treatment and bias.
Poor communication, which can include conducting a protracted disciplinary process or period of suspension and keeping the employee in the dark as to the reason why, or not clearly explaining any allegation. This can lead to confusion, misunderstandings and resentment.
Conducting a flawed or unfair disciplinary procedure, which can create legal problems.
When the disciplinary process is used unreasonably it can harm employee morale.
Finally
A fair and clear disciplinary procedure is vital to ensure any action taken is consistent, reasonable and legal, which benefits both employer and employee.
