Disciplinary procedures, hearings and appeals
In any business, it may sometimes be necessary to take disciplinary action against employees.
This guide covers disciplinary procedures, hearings and appeals, and outlines the disciplinary action you can take. It also explains that you must have written disciplinary rules and procedures and that you must tell your staff about them.
It covers the following topics:
- your written disciplinary rules and procedures
- whether or not your rules and procedures are contractual
- what you should include in your rules and procedures
- how you should go about investigating a disciplinary issue
- when informal or formal action is needed
- carrying out a formal hearing
- dealing with grievances during the disciplinary process
- disciplinary action you can take
- carrying out a hearing for an appeal against your decision
Disciplinary procedures and the employment contract
You must inform each employee in writing about:
- your disciplinary rules
- your disciplinary and dismissal procedure
- the name of the person that they should appeal to if they are unhappy about a disciplinary or dismissal decision
You can either include this in their written statement of employment or refer in the statement to where they can find the information, eg in a staff handbook.
If you fail to provide this information to an employee and they succeed in an industrial tribunal claim against you, they could be awarded two or four weeks' pay.
The status of disciplinary procedures
Current legislation stipulates that an employer must provide their employee with a written statement of particulars of employment within two months of commencing employment. This statement should also include a note specifying any disciplinary rules applicable to the employee and who they should address any appeals to if they are dissatisfied with a disciplinary/dismissal decision. The note should also specify who the employee should raise any grievances with.
This information can be provided in a separate document as long as this is reasonably accessible to the employee. Many employers opt to provide these documents by way of written procedures that are simply appended to the written statement.
Telling staff about disciplinary rules and procedures
It's important that you tell your employees about your rules on acceptable and unacceptable behaviour in the workplace, and the consequences of breaching them.
Setting out disciplinary rules
Your disciplinary rules should cover:
- health and safety
- personal appearance
- discrimination, bullying and harassment
- smoking, and alcohol and drugs consumption
- use of company facilities and equipment for personal reasons in work time
- internet/social media usage
Note that sometimes rule breaches on absence may be more appropriately dealt with as a capability matter. The Labour Relations Agency can advise on this. Your rules should make it clear that if an employee doesn't meet the minimum standards of conduct, you may begin disciplinary action against them.
The rules should also give examples of what behaviour you will treat as gross misconduct. This is misconduct judged so serious that it will lead to dismissal without notice, such as:
- drunkenness or drug abuse
- fighting at work
- gross negligence or insubordination
- serious breaches of health and safety rules
- wilful damage to property
- use of the internet or email to access pornographic, obscene or offensive material
- accessing confidential information deliberately when not entitled to
- bringing the organisation into serious disrepute
Make it clear that the list is not exhaustive. What counts as gross misconduct varies depending on the type of business and the role of the employee.
(It would only be in extreme cases that general bullying and harassment would be considered gross misconduct. Allegations of bullying and any allegations of discrimination, victimisation or harassment would be dealt with as a disciplinary matter with only the most serious issues being considered as gross misconduct for a first offence.)
Your disciplinary procedure should be set out in writing, follow the principles set out in the Labour Relations Agency (LRA) Code of Practice on Disciplinary and Grievance and, at the very least, comply with the statutory disciplinary and dismissal procedures.
If you unreasonably fail to follow the statutory procedures, or your own enhanced dismissal/disciplinary procedure and the issue ends up at an industrial tribunal or statutory arbitration hearing, any compensation awarded could be increased by between 10 and 50 per cent.
Investigating disciplinary issues
When faced with a potential disciplinary issue, you should carry out a full investigation before taking any action.
- the alleged breach of discipline
- the circumstances and consequences of the breach
- the employee's job, experience, length of service and disciplinary record
- any recent changes to the employee's job
- the evidence of any witnesses (and if relevant, their reliability)
- whether the employee has received appropriate counselling or training
- any mitigating circumstances, eg health or domestic problems, or provocation
You should then review the evidence and decide if:
- a case exists and whether it is serious enough for disciplinary measures
- there is an alternative to disciplinary action, eg an informal chat or redeployment
Suspending an employee while an investigation takes place
For certain serious offences you may need to suspend an employee while you investigate the issue. They should continue to receive their full pay. You should also consider alternative actions which would be more acceptable to the employee yet serve the same purpose as a suspension eg agreeing to a temporary transfer to other duties or another work station without loss of pay or the taking of annual holidays to which the employee is entitled. Any action taken should be reviewed to ensure it is not unnecessarily protracted. You should make it clear that any action taken is not considered a disciplinary action.
Criminal offences as a disciplinary issue
Don't dismiss someone just because they have been charged with or convicted of a criminal offence, either at work or outside of work. You should consider the seriousness of the offence and whether it affects their suitability to continue working for you.
If it does, follow your normal disciplinary procedure. If it doesn't, decide whether you can keep their job open during their absence.
Base your decision on a reasonable belief following an investigation into the circumstances. If a criminal charge has been made, you will need to consider if you can proceed with any disciplinary action immediately or whether you should await the outcome of any criminal proceedings. You can seek advice from the LRA on individual circumstances.
Informal and formal action for misconduct and poor performance
If an employee's performance or conduct does not meet your standards, you should try to help them improve. Have an informal discussion with them as soon as you're aware of a problem. Explain what they're doing wrong and agree actions to be taken.
If the employee's poor conduct or performance continues, you may have to take formal disciplinary action.
Your disciplinary procedure should - at the very least - comply with the statutory dismissal and disciplinary procedures, and meet the good-practice principles set out in the Labour Relations Agency (LRA) Code of Practice on Disciplinary and Grievance Procedures.
Remember that the employee has the right to be accompanied by a work colleague or Trade Union Official (who may be either a full-time official employed by a union or a lay union official who has been reasonably certified in writing by his/her union as having experience of, or as having received training in, acting as a worker's companion) at any formal disciplinary meeting.
Formal disciplinary procedure
When taking formal disciplinary action, the employer should comply with the Statutory Procedures by ensuring that the following steps are taken at all stages of the formal disciplinary process.
Step 1: Statement of grounds for action and invitation to meeting:
The employer must provide to the employee a written statement of the alleged misconduct which has led to the consideration of formal disciplinary action or dismissal. The employer should invite the employee to a hearing to discuss the issue.
Step 2: Hearing:
Prior to the hearing the employer should supply any information relevant to the allegation allowing the employee sufficient time to consider the detail and prepare their defense. After the meeting the employer should inform the employee of the decision and offer the right to appeal.
Step 3: Appeal:
If the employee wishes to appeal he or she will inform the employer within five working days. The employer will invite the employee to a further hearing to discuss the appeal. The final decision will be communicated to the employee.
If the alleged breach falls within the minor misconduct category the employer should follow the formal procedure outlined above and the following action will be taken if the employer is satisfied that an offence has occurred:
The employee should be given a verbal warning. It will be recorded and retained on file for a period of 6 months.
If the same or similar offence is repeated within 6 months the employee should be given a first written warning. It will be recorded and retained on file for a period of 12 months.
If the same or similar offence is repeated within 12 months the employee should be given a final written warning. This will contain a clear notice that a repeat of the offence within 12 months will result in dismissal.
If an employee has been issued with a final written warning then this normally means that any further misconduct within the duration of the warning may result in dismissal.
If the alleged breach falls within the major misconduct category the employer will follow the formal procedure as outlined above. If the employer is satisfied that an offence has occurred the employee will receive a final written warning which will contain clear notice that a repeat of the offence within 12 months may result in dismissal.
If the alleged breach falls within the gross misconduct category the employer will follow the formal procedure as outlined above. If the employer is satisfied that an offence has occurred the employee will be dismissed summarily: ie without notice and without wages in lieu of notice.
Preparing for a formal disciplinary hearing
Before you hold a disciplinary hearing, you should:
- familiarise yourself with the statutory dismissal and disciplinary procedures, the Labour Relations Agency (LRA) Code of Practice on Disciplinary and Grievance Procedures and your own enhanced dismissal and disciplinary procedure so that you apply it correctly and act in a fair and consistent way
- carry out a full investigation and make sure you have all relevant facts and details of any past disciplinary action taken against the employee
- obtain statements from any witnesses
- arrange for someone to take notes
You should also ensure the employee has:
- plenty of time before the meeting to prepare their case and consult any representatives (the LRA can advise regarding trade union representatives)
- details of the complaint, the procedure to be followed and the need for them to attend a disciplinary hearing
- had the opportunity to exercise their right to be accompanied at the hearing by a colleague or trade union representative
- copies of any documents you intend to rely on as evidence at the hearing
If the employee is a trade union representative, it is advisable to discuss the case with a full-time trade union officer or senior trade union representative. You should get the employee's agreement to this before discussing the case.
Holding a formal disciplinary hearing
When holding a formal disciplinary hearing, you should:
- ensure that it's private and won't be interrupted
- introduce everyone and explain why they are there
- explain the reason for the hearing and how it will be conducted
- describe the exact nature of the complaint and go through the evidence
- give the employee a chance to state their case and to respond to any allegations made
- get all the facts and take note of any special circumstances
- summarise what's been discussed and highlight any issues that need to be investigated further
If it becomes clear that the employee has a satisfactory explanation for their conduct or performance, stop the hearing and take no further action.
Informing the employee of your disciplinary decision
Following a disciplinary hearing, you should inform the employee as soon as possible in writing of:
- the disciplinary penalty you plan to impose, if any
- the reasoning behind your decision
- the specific improvement that is required, if any
- how long any warning is going to remain in force
- what will happen if they continue to perform or behave poorly
- their right of appeal and how this should be carried out
Dealing with delays to the disciplinary hearing
If the employee is genuinely unable to attend the disciplinary hearing, offer them a reasonable date and time as an alternative.
You should make the employee aware that decisions may be taken in their absence if they fail to attend rearranged meetings without good reason.
If the employee chooses to be accompanied by a companion and the employee's companion cannot make the rearranged hearing, the employee must propose another date and time which is no more than five working days after the day you originally proposed.
If the employee fails to attend the rearranged hearing without good reason, you can treat this stage of the procedure as complete and make your decision there and then. You must still inform the employee in writing of your decision and that they have the right to appeal.
If you cannot make the rearranged hearing, you must offer the employee a reasonable alternative date and time.
Notify the employee as soon as possible of any delays. If you fail to do so, an industrial tribunal/arbitrator could increase any compensation awarded to the employee.
Dealing with long-term absence
An employee may well become anxious or stressed in the run-up to a disciplinary hearing, which can lead to them being absent with stress-related illness.
If this happens, you can ask the employee's GP or an occupational health specialist for a medical report. You must gain the employee's agreement before doing so.
The report should state whether or not the employee is fit enough to attend a hearing in the near future.
If they are deemed fit enough to attend, you should arrange the hearing with the employee in the normal way.
If they are not fit to attend, you might not be able to complete the disciplinary procedure without unreasonable delay. You can treat the procedure as having been completed and make a decision in the employee's absence. You should still tell the employee that they can supply written representation or other material for their defence if they wish.
Dealing with grievances raised during disciplinary procedures
If the employee raises a grievance during the disciplinary process the employer can deal with the issue as follows:
If the grievance is totally unrelated to the disciplinary allegations:
It would normally be safe to progress with the disciplinary matter and deal with the grievance at a later stage.
If the grievance essentially constitutes the employee's defence to the disciplinary issues:
It would be desirable to deal with the two things at the same time. For example a proposed dismissal for poor performance where the grievance alleges this was due to a manager's bullying. No discussion of the one could sensibly be carried out without a rehearsal of the other.
If the grievance seeks to criticise or cast doubt on the integrity of the individual who is to make the disciplinary or dismissal decision:
The safest course of action may be to adjourn the disciplinary hearing until the grievance has been resolved or to sidestep the grievance by shifting the making of the proposed disciplinary decision to another manager if the employer's hierarchy gives space to do so.
Disciplinary action you can take
After a disciplinary hearing, you could decide to:
- drop the issue completely
- issue a verbal, written - or a final written - warning
- provide counselling or training to help resolve the issue
- apply a disciplinary penalty, such as demotion or dismissal
Take account of factors such as the employee's previous record and any mitigating circumstances in making your decision.
Disciplinary action other than dismissal
If you feel that the employee's misconduct or poor performance was not serious enough to dismiss them, you could:
- transfer them to another job
- demote them
- fine them, eg by not paying a bonus that they might have been eligible for
- suspend them without pay - this is not very common and would mean that you lose the employee's services for a time
To avoid potential claims, you should ensure disciplinary actions are authorised by the employee's contract of employment.
Holding a disciplinary appeal hearing
An employee has the right to appeal against the decision you make after the disciplinary hearing. You must tell them that they have this right when you give them written notice of your decision. Give them a deadline to let you know whether or not they want to appeal.
If the employee does appeal, you must try to hold the appeal hearing without unnecessary delay.
Before you hold an appeal hearing, you should make the same preparations that you made before the earlier disciplinary hearing(s).
Holding an appeal hearing
The principles for holding an appeal hearing are generally the same as for the initial disciplinary hearing.
However, at the appeal hearing, you should also consider:
- the reasoning behind the appeal
- any new evidence since the earlier decision
Ideally the person hearing the appeal should be different and more senior than the person that heard the initial hearing.
However, where the person hearing the appeal also heard the first hearing, they should act impartially and make sure they review the original decision carefully.
After the hearing, write to the employee with your decision and the reason for it as soon as possible. If the decision is final, your letter should make this clear.
Dealing with delays to the appeal hearing
You should deal with delays to the appeal hearing in the same way that you deal with delays to earlier disciplinary hearings.
Let the employee know as soon as possible of any delays to the appeal process. If you don't, an industrial tribunal/arbitrator could increase any compensation it awards to the employee. The Labour Relations Agency Arbitration Scheme explained.