As a business owner or manager, an inevitable part of your role will be to address any instances of alleged misconduct or unsatisfactory performance in a consistent, and legally compliant way. A failure to manage these situations properly can pose risks to your business so it is important to have a clear and appropriate disciplinary process which is followed consistently by all managers.

Put a Workplace Disciplinary Policy and Procedure in Place

Make sure you have a clear and appropriate disciplinary policy and procedure in place which employees have access to. This should as a minimum adhere to the ACAS Code of Practice.

You can have a disciplinary procedure that is used for both misconduct and/or performance (capability) or you can choose to have separate policies.

Carry out a Workplace Investigation

It’s always important to gather as much information as reasonably possible about the situation before making any decisions. This is known as a workplace investigation, and it should cover whether there is a case to answer and pull evidence and information together from all relevant parties.

There are different ways to conduct a workplace investigation, and this will depend on the nature of the allegations. It may involve collecting statements from witnesses or reviewing documentation such as expense claims and receipts if there is an allegation relating to fraudulent claims. It may also be appropriate to hold an investigatory meeting with the employee.

Ensure you have someone appropriate conducting the workplace investigation, usually someone on a similar or more senior level than the employee. It is also important to make sure the investigator is not involved in any disciplinary decision following the investigation. This is where it can be appropriate to appoint an external, independent workplace investigator to ensure a fair and objective process is followed.

It’s important to remember that at any stage, you can review whether a formal process is still required or whether the situation can be resolved informally, but ensuring these decisions are made on a consistent basis, i.e., if similar situations have resulted in disciplinary proceedings, careful thought would need to be given as to why you would not take this path.

Suspension

Part of your disciplinary policy and procedure should also include suspension as there may be situations where it’s appropriate to suspend an employee, for example if an employee is accused of gross misconduct, or if the employee remaining at work might hinder any workplace investigation. It’s important to be clear that suspension is not a disciplinary sanction and so pay should not be reduced. Any period of suspension should be as short as possible and regularly reviewed.

Inviting an Employee to a Disciplinary Hearing

Once the workplace investigation has been finalised, the employee should be requested, in writing, to attend a disciplinary hearing, with a clear outline of the allegations against them. You will also need to provide them with any evidence you have to support the allegations in advance of this meeting.

Employees are legally entitled to be accompanied to a disciplinary meeting by a colleague or trade union employee or official. You need to ensure you make this clear to them when inviting them to a disciplinary meeting. It may be appropriate to agree to an alternative person if the employee has a disability, or any other additional needs. They may request a family member accompanies them although be cautious about this as emotions can often run high in these instances. Be aware that you do not need to agree to a lawyer or police officer accompanying the individual nor family members. Be clear with all parties on the role of the person accompanying the employee – they are there for support and can ask questions and seek clarification for the employee, but they can’t answer questions on their behalf.

What are the key things to be aware of when conducting a Disciplinary Hearing?

Remember to have an open mind and treat the disciplinary meeting as an opportunity for you to outline the allegations and evidence against the employee, and for them to state their case in response to these. Avoid jumping to conclusions until you have heard their version of events.

Think about who should conduct this meeting, ensuring ideally it is not the same person that conducted the workplace investigation, whilst also ensuring there is someone at the same level or more senior who can remain uninvolved and hear any appeal.

If the employee raises any explanations or issues that need to be investigated, the meeting should be adjourned to allow this. Additionally, they may request that specific individuals are interviewed to support their case. You should always allow this where possible as failing to do this would likely result in any disciplinary sanction being unfair.

Where possible, have a note taker at the meeting to record the main points for you so you can concentrate on the meeting. The notes do not need to be verbatim and should be shared with all parties. Typically, a disciplinary meeting should not be recorded unless both parties have agreed to this. In some cases, it may be an appropriate reasonable accommodation for an employee who may not feel able to take their own notes.

Determining the Outcome

Unless the situation is very clear cut and agreed on by all parties, don’t rush into making a decision at the end of the meeting. Take the time to consider the case put forward by the employee but let them know at the end of the meeting when you will notify them of the decision. This may be a short break in the meeting, where the employee is called back, or it may be a further meeting after information shared in the meeting is considered, or after further workplace investigations are conducted.

If the disciplinary sanction is dismissal, this should always be delivered in person or via videoconference if working remotely. Make sure the decision is communicated succinctly to avoid confusion or uncertainty, with further detail being provided in a letter confirming the sanction.

The Right to Appeal

Your disciplinary policy and procedure will need to include the right for any employee to appeal against any disciplinary sanction that is imposed, regardless of the level of the sanction. They should be informed of this right when you confirm the sanction and within what period they need to lodge their appeal. The employee needs to provide the reasons for the appeal, and you will need to hold an appeal meeting with the employee.

This is where it’s really important to involve someone to hear the appeal who has not been involved in the workplace investigation or disciplinary meeting up until this point. This can be tricky for small businesses and that’s why it’s always worth thinking about who can hear any appeal right at the start of the process. Options may include other directors or non-executive directors, or an independent HR consultant as long as they have not had any involvement in the case up until this point.

Risks of not following a fair disciplinary process

Failing to follow a fair procedure can be a risky option for your business, opening you up to an employment tribunal claim for unfair dismissal. Protecting your business starts with making sure you carry out a reasonable workplace investigation, and ensuring you follow your disciplinary policy and procedure, which should at a minimum align to the ACAS Code of Practice. Failure to follow the ACAS Code of Practice can lead to an employment tribunal awarding an uplift of up to 25% in compensation.

Employees usually need to have 2 years continuous employment, however there are some exceptions to this, and it is therefore good practice to still follow a disciplinary procedure for those with shorter periods of service, albeit potentially a less onerous process, especially if there is any potential risk of discrimination claims which has no service length requirement. If you typically follow this path, however, make sure it is clearly stated in the policy and any contract of employment that the disciplinary policy and procedure is not contractual.

What can go wrong?

It’s worth being prepared for things not always going to plan when dealing with a disciplinary. Potential obstacles that can rear their head include:

The employee may be off sick with stress – if this happens, seek an Occupational Health opinion about continuing with the disciplinary.
The employee may raise a grievance. Be aware that a grievance can sometimes run concurrently, or you may want to consider pausing the disciplinary process until the grievance is dealt with.
The employee may commit additional acts of misconduct as a reaction to the situation, for example inappropriate posting on social media etc. Don’t be afraid to address any such issues in the appropriate manner.
The employee may threaten employment tribunal action. Following a fair and transparent process can protect you against this but also be realistic about the risks presented. Seek external HR or legal advice if you are concerned about the potential risks.

Key Tips to Think About when faced with handling a disciplinary situation:

Follow your workplace policies and procedures
Ensure a reasonable workplace investigation is conducted
Consider seeking to appoint an external, independent workplace investigator to ensure a fair and objective process is followed
Maintain an open mind, listening to and reviewing all the evidence available before jumping to any conclusions
Always adopt a consistent approach, to avoid any allegations or favouritism or preferential treatment
Think about who will be involved at all stages of the process at the start to ensure objectivity
Make sure managers are clear on their role and remit
If necessary seek guidance and advice from an independent HR consultant to ensure you are following a fair process and protecting your business

What you need to know about conducting a disciplinary process in the workplace