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Ways in which you may be able to avoid facing formal disciplinary action at work
Published 26 September 2022
The threat of any type of disciplinary action can cause serious distress, but what do you really know about your options to get out of such a situation?
Your employer can utilise its disciplinary process to address any concerns it has about your behaviour, actions or suitability to fulfil your duties.
Anyone who has ever found themselves facing formal disciplinary action at work can tell you about the enormity of the initial shock, fear, anger and frustration often associated with the process.
What you can expect from the disciplinary procedure should be detailed in your employer’s policy and it should reflect what is in the ACAS Code of Practice [1 cited 26.9.22]
If you find yourself facing disciplinary action there are ways in which you can try to get out of it.
Take advantage of any disciplinary investigation
A disciplinary investigation can often take place to establish the facts of a case before formal disciplinary action is taken against you [2 cited 26.9.22]
Employers are advised to approach an investigation with an open mind and look for evidence to support your case as well as evidence against.
So, if there is any evidence or witnesses that can help to clear you of an allegation, provide the details during any investigation. Also if there any mitigating factors, which helps to explain your actions you should provide details of it.
A disciplinary investigation can sometimes result in no formal disciplinary action being taken against you.
Raise a grievance
If you have legitimate and serious concerns about a disciplinary process you can raise a grievance in relation to it [3 cited 26.9.22]
The ACAS Code advises that where an employee raises a grievance during a disciplinary process it may be temporarily suspended in order to deal with the grievance.
It can be appropriate to do so, for example, if your grievance alleges: possible discrimination, a conflict of interests the manager holding the disciplinary meeting may have, bias or management being selective in the evidence presented.
In some cases after hearing and addressing a related grievance an employer can cancel the disciplinary process. Or at the end of a grievance process, you may be able to reach a settlement agreement [4 cited 26.9.22]. The agreement will bring your employment to an agreeable end and mean you avoid disciplinary action. These two things do not happen in all cases though.
A settlement agreement
Being subjected to unfair or unwarranted disciplinary action can often occur when a working relationship has irretrievably broken down.
A settlement agreement is a legally binding document between an employee and employer, which can be used to bring a working relationship to an end and settle all disputes in such cases.
Section 111A Employment Rights Act 1996 enables a pre-termination negotiation to take place with a view to ending an employee’s employment under a settlement agreement [5 cited 26.9.22]
You or your employer can initiate what is a protected conversation and inadmissible in any legal proceedings. Either party can object to the conversation if it considers such a discussion to be inappropriate.
Resignation
If the working relationship has broken down, your employer is not interested in a settlement and you simply want to bring matters to an end, you can resign ahead of a disciplinary hearing.
In such circumstances you will usually resign with immediate effect. If accepted it will mean you do not have to work your contracted notice period, and you will usually not get paid for it [6 cited 26.9.22]
An employer has no legal obligation to accept a resignation. If it does so will depend on your role and seriousness of any allegation you are facing.
For example, a caring professional accused of neglect may be able to resign, but the disciplinary process may continue. Whereas a warehouse worker who has failed to check stock correctly is much more likely to have their resignation accepted and the disciplinary action cancelled.
