FAQ: Disciplinary issues FAQs
30 FAQs people ask about disciplinary issues
- Why do we need a written disciplinary procedure?
- I've heard there is an Acas Code of Practice on Disciplinary and Grievance procedures. Do I have to follow it?
- Are there circumstances where the Acas Code does not apply?
- What should we include in our disciplinary procedure?
- Do we have to categorise disciplinary offences according to how serious they are, and explain which offences justify immediate dismissal?
- How do we go about drawing up and introducing a disciplinary procedure?
- How do we make sure our disciplinary procedure does not lead to any legal problems?
- I've heard the 2009 Acas Code of Practice has been updated. Do I need to change my disciplinary procedure?
- We've suspended an employee on full pay while we investigate allegations against them. How long can we do this for?
- Do we have to apply the same rules consistently to all employees?
- How do employees know about our disciplinary procedures?
- We have a potential disciplinary problem with an employee. Can we settle matters without going through the disciplinary procedure?
- Are there obligations on employees too?
- A manager says an employee threatened to punch them. Do we have to investigate before we can sack the employee?
- An employee says they have a right to a 'companion' throughout the disciplinary procedures? Is that true, and what does a companion do?
- We are going to have to hold a disciplinary hearing. What do we have to do?
- We've made our decision and notified the employee they're dismissed, but they say they want the reasons in writing.
- What disciplinary action can I take if allegations against an employee are proved?
- We've given an employee final written warning and they say they want to appeal. What happens next?
- A salesperson has been found guilty of assault after a drunken night out with friends. Can I just sack them?
- What do we do if an employee claims a rule is unreasonable
- An employee says they don't want their manager to conduct either an investigation or any disciplinary hearing. This is very inconvenient - can we just ignore them?
- An employee has had warnings before. How many do we have to give before we can dismiss them?
- What do we do if an employee has broken a rule but claims 'everyone does it'?
- An employee continually finds excuses not to attend their disciplinary hearing. Can we carry on without them?
- We've told an employee what the allegations against them are but they want copies of the witness statements we've taken. Do we have to show them?
- What do we do if we think that an employee is guilty of gross misconduct, but we cannot prove it?
- What do we do if there are extenuating circumstances for a disciplinary offence?
- An employee is appealing against our findings in their disciplinary case, and has now lodged a grievance, alleging sex discrimination in bringing the case against them. How do we handle this?
- We want to keep a written record of a disciplinary case - what should we include in it?
1. Why do we need a written disciplinary procedure?
If you think there are grounds for disciplining an employee - on grounds of misconduct or poor performance, for example - you must act fairly and reasonably. To help make sure that you do, it makes sense to establish a set of fair and reasonable rules - a disciplinary procedure - that makes clear to both you and your employees how disciplinary issues will be handled, and to set those rules out in writing.
Good disciplinary procedures are not about penalising employees, although sanctions may sometimes be necessary; they are also about helping and encouraging employees to overcome any misconduct or performance issues, so they can become fully effective again.
2. I've heard there is an Acas Code of Practice on Disciplinary and Grievance procedures. Do I have to follow it?
Employers (and employees and their representatives) must act fairly and reasonably in any disciplinary and grievance procudures. Failure to follow a fair procedure will make any subsequent dismissal or other disciplinary action unfair, even if following a fair procedure would have led to the same result. However, the compensation awarded to an employee by an Employment Tribunal can be reduced in those circumstances, to reflect the fact the dismissal or other disciplinary action would have happened anyway.
The Acas Code of Practice on Disciplinary and Grievance Procedures provides practical guidance and principles to help you act fairly. It sets out the basic requirements of fairness and, for most cases, provides a standard of reasonable behaviour. The Code also applies to grievance issues (see Grievance issues FAQs). The Code is available on the Acas website.
Failure to follow the Code does not automatically make a dismissal unfair but, if the Code applies (see 3), and you unreasonably fail to follow any of its provisions, an Employment Tribunal can increase any award it makes against you by up to 25% per cent. This could be particularly expensive in discrimination cases, where there are no limits on the compensation that can be awarded.
When deciding whether or not you have unreasonably failed to follow the Code's provisions, the Tribunal will take into account all the circumstances, including your size and resources. Sometimes it may not be practicable for you to take all (or any) of the steps set out in this Code. But take legal advice if you do not feel you can follow the Code for any reason, or you risk the 25% uplift.
You can find help on the Code in a supplemental guide (Discipline and Grievances at Work: The Acas guide). This provides good practice and advice, including examples, and sample disciplinary procedures and other documents. The guide is not part of the Code and Employment Tribunals are not required to take it into account when deciding whether you have been fair and reasonable, but it would be unwise to ignore what it says. The guide is available on the Acas website.
3. Are there circumstances where the Acas Code does not apply?
The Acas Code on Disciplinary and Grievance Procedures (see 2) does not apply when making an employee redundant, or where a worker's fixed-term contract is not going to be renewed. However, the overriding duty to act fairly and reasonably continues to apply (see the Acas advisory booklet on How to manage collective redundancies for help when making redundancies).
The foreword to the Code also suggests that employers might want to establish separate procedures for dealing with issues involving bullying, harassment or whistleblowing. However, the foreword is not part of the Code, so failure to follow anything in it will not expose you to the risk of a 25% uplift in any award made against you by an Employment Tribunal (see 2).
The Code also recognizes that employers may have a separate capability procedure to deal with performance issues, but it stresses that, if they do, the basic principles of fairness and reasonableness set out in the Code should still be followed, with any necessary adaptations. Take advice.
4. What should we include in our disciplinary procedure?
When drawing up and applying procedures, always bear in mind they need to be fair and reasonable. Your procedure should let employees know how you will deal with disciplinary matters, and must either follow the Acas Code on Disciplinary and Grievance Procedures (see 2) or, at least, the basic principles of fairness and reasonableness it is based on. There are sample disciplinary procedures in the guide to the Acas Code (see 2), including for small organisations.
A summary of the requirements is:
- Employers should investigate the facts before taking disciplinary action.
- If the facts justify taking it further, the employee must be given details of the allegations against them, the potential consequences and the time and place at which a disciplinary hearing will be held, in writing, together with copies of any written evidence.
- The case against the employee should be explained to them at the hearing, and the hearing should go through the evidence, with the employee having an opportunity to respond to the allegations, ask questions and call witnesses.
- After the hearing, the employer should tell the employee, in writing, whether disciplinary action is to be taken and, if so, what it is.
- The possible disciplinary actions might include a first written warning, a final written warning or dismissal. If the employee's behaviour or performance is sufficiently serious, it may be appropriate to leapfrog straight to a more severe penalty
- A written warning should set out the improvement in conduct or performance required of the employee, a time limit for achieving it, and the consequences if it is not.
- Employees have a right of appeal against any action decided upon (and not only if it is a dismissal). Tell them this, in writing, in the letter giving your decision.
- They must appeal in writing.
- The investigation, the hearing and the appeal hearing should each be carried out by a different manager, if possible.
- The employee has the right to be accompanied by a companion at hearings (see 15).
Your procedure should set out some examples of conduct which would result in disciplinary action. These will relate to work and work performance - for example timekeeping, absenteeism, use of workplace facilities, personal appearance, negligence, sub-standard work, and disregard of health and safety requirements - as well as more general misconduct such as theft, fraud, offensive behaviour (such as discrimination, harassment, bullying, abuse and violence) and inappropriate behaviour (such as drinking, drug taking or smoking at work).
In view of the fact that smoking in enclosed (or substantially enclosed) areas is illegal, you should identify the steps you will take if employees flout the law (and that you would like them to take if customers or other visitors do likewise).
Depending on the nature of your business, you might need to identify other forms of misconduct. For example, you might need specifically to state that it will be misconduct to breach your policies on how employees use computers and the internet at work (to protect the business against viruses and legal risks).
Do not try to be too prescriptive, or people might simply take it as a challenge to beat the system. Moreover, you need flexibility to cover new situations. Give examples of the rules, but make sure they are clearly indicated as examples.
5. Do we have to categorise disciplinary offences according to how serious they are, and explain which offences justify immediate dismissal?
Yes. There is a big difference between poor timekeeping and selling the company's secrets or stealing its computers.
You could classify some offences (for example, poor timekeeping, smoking in prohibited areas, less serious breaches of health and safety rules) as misconduct. You might also want to specify that repeated minor misconduct (for example, persistent poor timekeeping) can, cumulatively, amount to a more serious offence.
Immediate dismissal, without either a notice period or pay in lieu, will only be justified for the most serious offences - gross misconduct. You must give employees a clear indication of the type of behaviour you consider to be gross misconduct. This usually includes theft, fraud, taking bribes, serious insubordination, physical violence or bullying, deliberate and serious damage to property, deliberately accessing pornographic or offensive internet sites, discrimination or sexual harassment. Serious health and safety offences, taking alcohol or illegal drugs or a serious breach of health and safety rules are also often specified as gross misconduct.
An exhaustive list is not usually possible, so employers usually give examples. Be careful, though. The fact that you consider an offence to be gross misconduct does not mean that an Employment Tribunal will agree with you. The Tribunal will decide whether your response falls within the band of reasonable responses open to an employer in your type of business and in your circumstances. If it falls inside the band, it is fair; if it falls outside the band, it is unfair.
If gross misconduct is established, justifying summary dismissal, you must still follow a fair procedure, and only dismiss without notice or pay in lieu once you have concluded the appropriate disciplinary steps - see 14, and Gross misconduct: 16 FAQs.
6. How do we go about drawing up and introducing a disciplinary procedure?
It is advisable to get your procedure drawn up by specialist employment lawyers, although you can find sample procedures in the guide to the Acas Code of Practice on Disciplinary and Grievance Procedures (see 2).
Whoever draws up your procedure, the Code recommends that you involve employees (and any employee's representatives) and those who will have to apply the rule in practice, such as managers, in the process. If everyone has had a chance to discuss the reasons for the procedures and the way in which they will work in practice, they are much more likely to buy into them - and employees are much less likely to condone other employees breaching them.
Once drawn up, give employees printed copy of the rules, or written information about how to access them - for example, on your intranet or in your staff handbook, if you have them. Otherwise, display them in a prominent place.
If there are special cases - for example, employees who are new to work, or returning after an absence, or who cannot read or speak English poorly, or are visually impaired - additional steps may be needed to ensure they know and understand the procedures.
Also, employees without written contracts of employment are entitled to a written statement of employment particulars, and these must include a note about disciplinary rules and procedures.
Once your disciplinary rules and procedures are drawn up, train all staff who will use and operate them, which will include all managers. If you recognise trade unions, or there are other employee representatives, train them all together so there is a common understanding of them and how they are intended to work in practice.
7. How do we make sure our disciplinary procedure does not lead to any legal problems?
The key is for your procedure, and the way you apply it, to be reasonable, fair and consistent. The guide to the Acas Code on Disciplinary and Grievance Procedures (see 2) says this means your procedure should:
- be in writing;
- be specific and clear;
- not be discriminatory;
- provide for matters to be dealt with speedily;
- allow for information to be kept confidential;
- tell employees what disciplinary action might be taken;
- say what levels of management have the authority to take the various forms of disciplinary action;
- require employees to be informed of the complaints against them and supporting evidence, before a disciplinary meeting;
- give employees a chance to have their say before management reaches a decision;
- provide employees with the right to be accompanied;
- provide that no employee is dismissed for a first breach of discipline, except in cases of gross misconduct;
- require management to investigate fully before any disciplinary action is taken;
- ensure that employees are given an explanation for any sanction and allow employees to appeal against a decision;
- apply to all employees, irrespective of their length of service, status or say if there are different rules for different groups and ensure that:
- any investigatory period of suspension is with pay, and specify how pay is to be calculated during this period. If, exceptionally, suspension is to be without pay, this must be provided for in the contract of employment;
- any suspension is brief, and is never used as a sanction against the employee prior to a disciplinary meeting and decision, and that the employee is kept informed of progress;
- the employee will be heard in good faith and that there is no pre-judgement of the issue;
- where the facts are in dispute, no disciplinary penalty is imposed until the case has been carefully investigated, and there is a reasonably held belief that the employee committed the act in question.
The same rules should apply to all employees unless there is a good reason why not. Usually, there won't be.
A procedure should also be implemented fairly, reasonably and consistently. What this means will depend on the individual circumstances, but basic requirements are that you must:
- Raise and deal with issues promptly and not unreasonably delay meetings, decisions or confirmation of those decisions.
- Act consistently.
- Carry out any necessary investigations, to establish the facts of the case.
- Inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made.
- Allow employees to be accompanied at any formal disciplinary or grievance meeting.
- Allow employees to appeal against any formal decision made.
8. I've heard the 2009 Acas Code of Practice has been updated. Do I need to change my disciplinary procedure?
Probably not. The changes to the Acas Code of Practice, which came into force on 11 March 2015, were relatively small and relate specifically to the right of accompaniment at disciplinary and grievance hearings (see paragraphs 14-16 and 36-38 of the Code). However, bear in mind that if there is an unreasonable failure to comply with the Acas Code of Practice (see 2) Tribunals can increase awards against employers by up to 25%.
It is a good idea to review your procedures - at least every year - to make sure that they remain relevant and are still working effectively. Any proposed changes should also be discussed with employees and any representatives.
If you are planning to overhaul (or introduce) disciplinary procedures, take legal advice.
9. We've suspended an employee on full pay while we investigate allegations against them. How long can we do this for?
First, are you sure that suspension on full pay is justified? Only resort to this if it is necessary - the Guide to the Acas Code of Practice (see 2) suggests the following as examples of when it may be necessary while investigations are carried out:
- where relationships at work have broken down;
- in gross misconduct cases (see 5);
- where there are risks to an employee's or the company's property or responsibilities to other parties; or
- exceptionally, where you have reasonable grounds for concern that evidence has been tampered with or destroyed, or witnesses pressurized, before a disciplinary meeting.
If justified, the suspension should be as brief as possible, and kept under constant review to make sure it is not continuing unnecessarily. Make it clear to the employee that suspension is not a disciplinary action or an assumption of guilt, and keep them informed of the progress of your investigations.
You can only suspend someone without pay if their contract of employment allows you to do so.
10. Do we have to apply the same rules consistently to all employees?
It is important to be consistent, but it is even more important to be reasonable. You should investigate the circumstances in each case, and also consider any mitigating factors. It is quite possible that an offence (for example, drunkenness) that would merit instant dismissal in one employee (an employee who comes in drunk and is violent and abusive), would merely merit a reprimand in another (an employee who comes in having had a drink or two after celebrating a family event).
If you do end up treating different employees differently for the same offence, however, you do need to be able to explain and justify exactly why. Otherwise, you risk a discrimination claim.
11. How do employees know about our disciplinary procedures?
All businesses, no matter how small, are required to include in any written statement of terms and conditions given to employees:
- details of any disciplinary (and grievance) procedures that apply to employees, or an indication of where employees can find and read them; and
- the name or title of the person to whom employees can apply if they are dissatisfied with disciplinary decisions, or want redress for grievances.
But take care not to make a disciplinary procedure part of your employee's terms and conditions. If you do, and you fail to observe some detail of the procedure you could find yourself in breach of contract.
Employees should also be involved in drawing up your disciplinary procedure (see 6), and you will need to train staff who will be involved in implementing it.
12. We have a potential disciplinary problem with an employee. Can we settle matters without going through the disciplinary procedure?
As the Acas Code of Practice on Disciplinary and Grievance Procedures (see 2) says, many potential disciplinary issues can be resolved informally, particularly in smaller firms. The Code aims to stop disputes escalating, and stop acrimony in the workplace because matters get too formal too quickly. It points out that a quiet word is often all that is required to resolve an issue, and advocates flexibility and communication between employer and employee. However, where an issue cannot be resolved informally then it may have to be pursued formally.
The guide to the Acas Code of Practice on Disciplinary and Grievance Procedures (see 2), which contains examples of circumstances when a matter might be resolved informally, recommends talking to an employee in private first - a two-way, constructive discussion of possible shortcomings in conduct or performance, designed to encourage a sustained improvement. If it becomes clear there is no real problem, say so. Where change is needed, make sure the employee understands what needs to be done, how their performance or conduct will be reviewed, and over what period. Confirm in writing what has been decided.
Informal discussion can turn into a disciplinary step without your meaning it to. If it does, you can inadvertently breach rights that your employee is entitled to in disciplinary proceedings, such as the right to be accompanied. If it becomes obvious that the matter may justify disciplinary proceedings, stop the discussion and tell the employee that the matter needs to be continued under the formal disciplinary procedure.
Training, coaching and advice for managers can help avoid these problems.
Another possibility, before resorting to a formal procedure, is mediation, where an independent third party is brought in to help resolve the problem. The third party could be someone within the business who is not involved in the disciplinary or grievance issue, or it could be an external mediator. However, failure to mediate will not expose you to a possible 25% uplift in any award made against you for failing to follow the Acas Code of Practice, as mediation is only mentioned in the (non-statutory) foreword to the Code, not in the Code itself.
13. Are there obligations on employees too?
Yes. They must also act fairly and reasonably. And if they unreasonably fail to follow the Acas Code of Practice on Disciplinary and Grievance Procedures (see 2), an Employment Tribunal can reduce any award made to them by up to 25%.
14. A manager says an employee threatened to punch them. Do we have to investigate before we can sack the employee?
If an employee's behaviour amounts to gross misconduct (see 5), it may justify dismissal without the usual period of notice, or any pay in lieu of notice - and physical violence or serious insubordination in the workplace will usually be gross misconduct - but you must still follow a fair, reasonable disciplinary process first. This will always include investigating the allegations first.
The more serious the allegations against the employee, the more rigorously and thoroughly you should investigate. You are not just looking for evidence of their wrongdoing - you should also be open to evidence that supports their version of events.
In most cases, your investigation will include a fact-finding meeting with the employee. This is part of the formal disciplinary process, so you must act fairly, reasonably and consistently, but it is not a disciplinary meeting. Give them notice of the meeting so they have time to prepare, and tell them which manager (or external consultant, if one is involved) will conduct it.
As this meeting is just to gather facts, do not discuss disciplinary action. If it becomes clear disciplinary action may be needed, this must be dealt with at a separate disciplinary meeting, where the employee's rights, such as the right to be accompanied (see 15), will apply.
You can choose to use external consultants to carry out an investigation, but are responsible for their conduct - for example, if they behave in a discriminatory way, you are still responsible.
15. An employee says they have a right to a 'companion' throughout the disciplinary procedures? Is that true, and what does a companion do?
Employees have a statutory right to be accompanied at disciplinary meetings where the meeting could result in:
- A formal warning being issued, that will go on the worker's record.
- The taking of some other disciplinary action (such as suspension without pay, demotion or dismissal).
- A hearing where a warning or some other disciplinary action is confirmed.
- An appeal hearing.
There is no right to be accompanied to informal meetings or mediation unless there is provision for that in your own rules. Nor does an employee have a legal right to be accompanied at a fact-finding investigatory meeting (because this is not a disciplinary meeting - see 14) unless you have specifically given them this right in your business's own procedure.
The companion can be:
- A colleague;
- A trade union representative who is not employed by the union but has been certified in writing by it as competent;
- An employed official of a trade union.
The union does not have to be recognized, and the employee does not have to be a member of it.
The employee must make a "reasonable request" first, saying who they want their companion to be. This can be given orally. Take advice if you think your employee's request might be unreasonable - for example, the companion's presence would prejudice the hearing, or they are from a remote geographical location even though someone on site is suitable and willing to act. Your rules may give employees the right to bring other companions, such as a legal representative.
Consider special provisions for disabled workers, allowing them to bring a companion (such as a support worker) with knowledge of their disability and its impact, so you meet the requirement to make "reasonable adjustments" for disabled workers.
The Acas Code of Practice on Disciplinary and Grievance Procedures (see 2) recommends a companion be allowed to participate as fully as possible in the hearing - to confer with the employee, address the hearing to put and sum up the worker's case, to respond on behalf of the worker to any views expressed at the meeting and to ask questions of witnesses. The companion does not, however, have the right to answer questions on the worker's behalf, address the hearing if the worker does not wish it, or prevent the employer from explaining their case.
If another of your employees acts as companion, you must give them a reasonable amount of paid time off to allow them to brief themselves on the case, attend the hearing and confer with the employee before and after it. Make sure you hold the hearing so the companion can attend. If they cannot, the employee is allowed to suggest a reasonable alternative within five days of your proposed date and you must comply or face a penalty of two weeks' pay in an Employment Tribunal.
There is nothing to stop the person who will be conducting the meeting from contacting a companion they do not know, in advance.
16. We are going to have to hold a disciplinary hearing. What do we have to do?
First, tell your employee in writing, giving them enough information about:
- the alleged misconduct or poor performance
- the possible consequences if the allegations are proved
- the date, time and venue - the meeting must be held without unreasonable delay, given the employee's need to prepare
- their right to be accompanied at the meeting (see 15)
- the procedure that will be followed, including how they tell you about witnesses they want to call, and submit witness statements
so that they can prepare for the hearing and answer the case against them. Also send them copies of any relevant documents such as time sheets, sickness or disciplinary records, and any witness statements unless a person giving a statement has requested anonymity (see 26). Make sure these are also available at the hearing.
If you can, investigate any explanations you anticipate the employee may offer, including any personal or non-work issues that could have a bearing on the case.
Appoint someone who is not involved in the case to take a note of the hearing and act as witness to the proceedings.
If the employee might otherwise be unable to take a full part in the hearing - for example, because of a disability or their English is poor - consider arranging an interpreter or facilitator, in addition to any companion (although it is obviously more convenient if one person can fulfil both roles), so you show you have not been discriminatory, and have made "reasonable adjustments" for a disabled employee.
Map out the structure of the meeting, and plan the points you want to cover. Introduce those present to the employee, explain why they are there, introduce and explain the role of any companion, explain the purpose of the meeting (to consider whether disciplinary action should be taken in accordance with your business's disciplinary procedure) and explain how the meeting will be conducted.
Then state the alleged misconduct or performance issues as precisely as possible, and outline the case by going through the evidence. Allow the employee to present their case and answer the allegation - for example, they may have an explanation for their alleged behaviour. Give them the opportunity to ask questions, present evidence and call witnesses, and raise points about information provided by witnesses.
Also take into account the rights of any companion (see 15). If witnesses cannot attend, and their evidence is important, consider adjourning so that questions can be put to them. If new facts emerge, consider adjourning while they are investigated.
Keep the proceedings formal, courteous and make sure it is a two-way process by asking open questions, checking your and the employee's understanding of what has been said, and do not get into an argument. At the end, summarise the main points, and ask the employee if he wants to add anything.
If it becomes clear the allegations are unfounded, end the hearing. If the employee agrees the allegations, try to agree steps that would remedy the situation.
If you decide to take disciplinary action, adjourn while you consider your penalty (or it may look as if you had made up your mind in advance), but give your decision as soon as possible after the meeting. If it is dismissal, tell the employee the reasons, the date employment will end, the notice period and that they have a right to appeal.
Whatever the disciplinary action to be taken, notify the employee in writing immediately, setting out:
- The nature of the misconduct or performance issue;
- Any period of time given for improvement and the improvement expected;
- The disciplinary penalty and, where appropriate, how long it will last;
- The likely consequences of further misconduct or poor performance;
- The timescale for lodging an appeal and how it should be made
- For a dismissal, the reasons for it.
Ask for an acknowledgement of receipt.
17. We've made our decision and notified the employee they're dismissed, but they say they want the reasons in writing.
If the employee has one year's service or more, you have to provide a 'written statement of reasons for dismissal' within 14 days of being asked for one, unless it is not reasonably practicable.
If the employee is pregnant or on maternity or adoption leave and you dismiss them, they are automatically entitled to the written statement, however long they have worked for you, without having to ask for it.
18. What disciplinary action can I take if allegations against an employee are proved?
Whatever is fair, reasonable and consistent in the circumstances, including:
- Your size and resources.
- Whether it is clear to the employee what the likely penalty is (given your rules, and previous penalties for similar acts).
- Whether "everyone does it", so this employee is being unfairly singled out (see 24).
- The employee's disciplinary record (including current warnings), general work record, work experience, position and length of service.
- Any special circumstances, such as bad weather affecting attendance, health or domestic problems, provocation, justifiable ignorance of the rules or inconsistent treatment in the past.
- Whether any training, support or adjustments would help.
The usual action is to give a first written warning. If there is further misconduct, or performance does not improve within a set period, give a final written warning. If the employee's behaviour has, or could have, had a serious or harmful impact on the business - for example, an employee who has had training and access to relevant support consistently gives unachievable delivery dates to a major customer - consider moving straight to a final written warning.
In your written warnings, set out the misconduct or performance problem, the action to be taken to improve the situation, reasonable timescales for achieving it, review dates during that period, any action you are to take, such as training, and the possible consequences of failing - including dismissal or demotion for a final warning.
First and final warnings should both state when they are to be treated as expired. It's usual for different types of warnings to stay in force for different periods - for example, six months for a first written warning, and 12 or more for a final written warning. If there has been no further problem during that period, they are then treated as 'spent', and ignored in future.
Further misconduct or poor performance after an employee has had a final written warning could warrant dismissal. Give the employee appropriate notice or payment in lieu of notice, unless the dismissal is for gross misconduct. Alternatively, if (but only if) the employee's contract allows, or the employee expressly agrees, you may be able to impose a disciplinary transfer, disciplinary suspension without pay, demotion, loss of seniority or loss of increment. Confirm the penalty in writing and set out the time limits and procedure if the employee wants to appeal.
In cases of gross misconduct, dismissal without notice may be justified - see 14.
If in doubt, take advice.
19. We've given an employee final written warning and they say they want to appeal. What happens next?
An employee who feels that disciplinary action is unfair, unreasonable or inconsistent (for example, because the penalty is too harsh, the procedure was not fair, there is new evidence or they think the decision was just plain wrong) has a right of appeal. The appeal can ask for a re-hearing, or for the penalty to be reviewed, and the employee must give you the grounds of their appeal in writing. You cannot impose a more severe penalty on appeal.
You must hear appeals without unreasonable delay and, if possible, an appeal should be conducted by a manager who has not previously been involved, and who is more senior than the manager at the first hearing. Employees are entitled to a companion (see 15). Give the employee the result of the appeal, in writing, as soon as possible.
It's best to have a specific appeals procedure, which should:
- Give a time limit (say five days) within which an appeal must be lodged;
- Require the appeal to be decided quickly - particularly for more serious disciplinary action;
- Set out the right to be accompanied at any appeal meeting, and that you must notify the employee of this right;
- Provide that the employee, or a companion if the employee so wishes, has an opportunity to comment on any new evidence arising during the appeal before any decision is taken;
- Ensure records of the previous hearing are available to all.
As well as the steps in Q4. What should we include in our disciplinary procedure?, the manager with conduct of the appeal should ask the employee why they are appealing, pay particular attention to any new evidence, and give the employee a chance to comment on it.
Once the decision is made, tell the employee and give reasons for the decision. Then confirm it in writing, making it clear that the decision is final.
If the original decision is overturned, consider additional training for managers and/or a review of your disciplinary procedure.
20. A salesperson has been found guilty of assault after a drunken night out with friends. Can I just sack them?
A criminal charge or conviction does not, of itself, usually justify disciplinary action. It has to have an effect on the employee's ability to do their job - because it affects their relationship with their co-workers, customers, suppliers or you.
For example, an accounts manager responsible for handling cash who is convicted of fraud, or a senior salesperson who assaults a customer, can expect disciplinary action, but an admin clerk convicted of taking illegal drugs on a Saturday night in town cannot usually be disciplined. It is only if the offence means they are not available to work that you may have to start disciplinary action, with a view to dismissal or a change in their duties, given the needs of your business.
The fact other workers find an employee's behaviour unacceptable is not of itself grounds for disciplinary action. Their reaction may not be fair or reasonable so, while you may take it into account, you must also balance it against all other relevant factors.
If the matter involves the police, you cannot ask them to help you with your investigation, as they should not be involved in your disciplinary procedure.
21. What do we do if an employee claims a rule is unreasonable?
Consider carefully what they have to say. If you insist on them observing the rule, and they insist on flouting it, the matter could eventually end up in front of an Employment Tribunal. In that case the extent to which you have been reasonable in applying the rule in the first place, and then in responding to any challenge, will be critical to the outcome.
22. An employee says they don't want their manager to conduct either an investigation or any disciplinary hearing. This is very inconvenient - can we just ignore them?
For misconduct cases, different people should carry out the investigation, any disciplinary hearing and any appeal, and none of them should have been involved in any way with the case previously. Ideally, the manager conducting an appeal should be senior to the manager who carried out the hearing.
23. An employee has had warnings before. How many do we have to give before we can dismiss them?
After you have investigated alleged misconduct or poor performance, your procedure could follow three steps: first written warning; final written warning; and dismissal. Each step will involve a disciplinary hearing.
It is important that you have the flexibility to give a penalty which is appropriate in the circumstances. Within the minimum requirements (see 4), reserve the right to enter the procedure at any stage depending on the severity of the offence. For example, in the case of gross misconduct you would want to move straight to dismissal (after having followed the required procedures).
Warnings are usually given for a finite time, and you should take care to observe the expiry of previous warning periods. The Employment Appeals Tribunal (EAT) has found that a company had unfairly sacked one of its workers, for repeating an offence for which they had previously received a final warning, just three weeks after the expiry of that warning.
Although acknowledging the employee's fault, the EAT said that the Employment Tribunal was obliged to ignore previous warnings, once they had expired. This approach is endorsed in the Acas Code of Practice (see 2), which says that disciplinary action taken should be disregarded for disciplinary purposes after a specified period of satisfactory conduct or performance, except in agreed, specific circumstances.
However, where there is a pattern in the offences committed by an employee, this can be taken into account in setting the expiry period for warnings for future misconduct or poor performance, even though the expiry periods for past warnings have elapsed.
24. What do we do if an employee has broken a rule but claims 'everyone does it'?
Are they right? If you have been turning a blind eye to other employees breaking the rule, it will probably be unfair to make an example of this employee. If the rule is important, you will have to re-emphasize it, giving everyone fair warning that failure to observe it will be penalised in future.
25. An employee continually finds excuses not to attend their disciplinary hearing. Can we carry on without them?
The Acas Code of Practice on Disciplinary and Grievance Procedures (see 2) requires employers, employees and companions (see 15) to make every effort to attend disciplinary meetings.
If an employee is persistently unable or unwilling to attend a disciplinary meeting and there is no good excuse, consider holding the disciplinary hearing in the employee's absence, taking into account:
- any rules you have set for failure to attend
- the gravity of the disciplinary issue being considered
- the employee's disciplinary record (including current warnings), general work record, work experience, position and length of service
- any relevant medical opinion, if they are claiming illness
- how similar cases have been dealt with in the past
But be fair and reasonable. If the excuses are genuine - for example, certified sickness - be patient. And you must always warn your employee in advance if you plan to go ahead without them.
Employees who take matters to an Employment Tribunal following disciplinary action risk finding their awards (if any) substantially reduced (by up to 25%), if they have not followed through on the full appeals procedure beforehand.
26. We've told an employee what the allegations against them are but they want copies of the witness statements we've taken. Do we have to show them?
If an employee is to go through a disciplinary case, you should send them a written notification that contains enough information about their alleged misconduct or performance, and the possible consequences, to enable them to prepare their answers to the allegations at a disciplinary meeting. Normally, you would also send copies of any written evidence, including any witness statements, with the notification.
Sometimes, it's possible to withhold information because, for example, an employee giving evidence wants to remain anonymous. If so, take written statements from them, including the date, time and place of each incident observed, anonymise the statement, and provide it to the employee being disciplined instead. First, though, cross-check the statement by collecting as much additional evidence as you can (whether it corroborates or contradicts the statement); and check that the person's motives are genuine - for example, that they do not hold a grudge.
If possible, the manager conducting the disciplinary hearings should interview the employee personally and take a view as to their credibility and the weight to be given to their statement. If the employee being disciplined challenges anything in the statement at the hearing, it may be necessary to adjourn it so the challenge can be put to the informant.
If their evidence is crucial but weak or lacks credibility, it may mean the disciplinary hearing cannot go ahead. Take advice.
27. What do we do if we think that an employee is guilty of gross misconduct, but we cannot prove it?
Investigate thoroughly. If you take disciplinary action and are sued for unfair dismissal as a consequence, you have a defence if you can prove that you investigated thoroughly, and acted in a reasonable belief of guilt on the basis of that investigation. You will not be expected to prove the employee's guilt beyond reasonable doubt.
If a criminal offence is involved (for example, theft) consider calling in the police. Take legal advice.
28. What do we do if there are extenuating circumstances for a disciplinary offence?
Take them into account in deciding what penalties to apply. Keep good records of the extent to which you are doing so. It is not necessarily reasonable to apply the same penalty to the same offence in different circumstances (see 10), but if you are going to treat employees differently you need to be able to explain why.
Do not ignore extenuating circumstances. In one case in which an employee was sacked for writing insulting e-mails about their boss, the Employment Tribunal to which they appealed found the employee 75% responsible for the outcome, but also attributed some blame to the company, because the employee's offer to apologise before the instigation of disciplinary procedures was not taken up.
29. An employee is appealing against our findings in their disciplinary case, and has now lodged a grievance, alleging sex discrimination in bringing the case against them. How do we handle this?
The Acas Code of Practice on Disciplinary and Grievance Procedures (see 2) makes it clear that a disciplinary process can be temporarily suspended if an employee raises a grievance during it, so that the grievance can be dealt with. The guide to the Code gives the following examples, where the employee alleges:
- The manager holding the disciplinary meeting has a conflict of interest.
- Bias in the way the disciplinary meeting is conducted.
- Management have been selective in the evidence they have supplied to the manager holding the meeting.
- There is possible discrimination.
If the disciplinary case and the grievance are related, it can be appropriate to deal with both issues together.
30. We want to keep a written record of a disciplinary case - what should we include in it?
The guide to the Acas Code of Practice on Disciplinary and Grievance Procedures (see 2) recommends employers keep confidential, written records of disciplinary cases, including:
- The complaint against the employee.
- The employee's defence.
- Findings made and actions taken.
- The reason for actions taken.
- Whether an appeal was lodged.
- The outcome of the appeal.
- Any grievances raised during the disciplinary procedure, and subsequent developments.
- Notes of any formal meetings - taken, where possible, by someone who is not involved in the case, who can also act as a witness.
Where you have tried to resolve matters informally, employers should also keep notes of any agreed informal action, and of reviews of progress over specified periods.
The Data Protection Act 1998 gives employees the right to ask to see certain personal data you hold about them and says you must not keep records longer than necessary. Read the Information Commissioner's employment practices code covering recruitment and selection, employment records, monitoring at work and information about an employee's health.
Acas recommends that copies of meeting records should be given to the employee, including copies of any formal minutes taken. However, where there is a good reason (for example, to protect another employee), it may be lawful to withhold certain information (see 26). Take advice.
The article above was written with considerations from Corporate Law tutors in Lancaster and Commercial Law advisors based in Wigan. In relation to the article above our solicitors who serve areas such as Southport, are able to offer expert legal advice on this subject.
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