Disciplinary procedures, hearings and appeals

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

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Disciplinary procedures and the employment contract

You must tell each employee 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 employment tribunal claim against you, they could be awarded two or four weeks’ pay.

The contractual status of disciplinary procedures

Your dismissal and disciplinary procedures may not necessarily form part of an employment contract. In this case, an employee may not be able to claim breach of contract if you fail to follow it.

If you do choose to make your disciplinary procedure contractual and you fail to follow it when taking disciplinary action, the employee could bring a breach of contract claim against you.

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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:

• absence
• timekeeping
• performance
• 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 usage

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’s likely to lead to dismissal without notice, such as:

• bullying and harassment
• drunkenness or drug abuse
• fighting at work
• fraud
• gross negligence or insubordination
• serious breaches of health and safety
• theft
• wilful damage to property
• use of the internet or email to access pornographic, obscene or offensive material

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.

Disciplinary procedures

Your disciplinary procedure should follow the principles set out in the Acas code of practice on disciplinary and grievance procedures.

If you unreasonably fail to follow the code during a disciplinary procedure and the issue ends up at an employment tribunal, the tribunal could increase compensation to the employee by up to 25 per cent.

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Investigating disciplinary issues

When faced with a potential disciplinary issue, you should carry out a full investigation before taking any action. Consider:

• 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
• 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 can only suspend an employee without pay if this is allowed in their contract of employment.

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, don’t put off taking appropriate, fair and reasonable disciplinary action just because the outcome of the prosecution isn’t yet known.

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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 meet the good-practice principles set out in the Acas code of practice on disciplinary and grievance procedures.

Remember that the employee has the right to be accompanied by a colleague or union representative at any formal disciplinary meeting.

Disciplinary action for misconduct

In cases of misconduct, you should have a meeting with the employee to explain the disciplinary procedure and your reasons for initiating it. After this, you could either drop the issue or give the employee an informal verbal warning.

After an informal warning, you should allow the employee time to improve their behaviour.

Disciplinary action for poor performance

In cases of poor performance, the procedure is different. As a first step, meet with the employee to agree an improvement plan. This should include a realistic timescale for improvement, details of support to be given to the employee and a date for a performance review. Make notes of what you agree and use it as an agenda for the review.

If your employee’s performance has not improved after the review, consider issuing an informal verbal warning. Carry out a further review and issue a further informal warning if their performance still hasn’t improved. If they continue to not meet the required standards, you should consider holding a formal disciplinary hearing.

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Preparing for a formal disciplinary hearing

Before you hold a disciplinary hearing, you should:

• familiarise yourself with your 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
• inform managers and witnesses who may need to attend
• obtain statements from any witnesses unable to attend the hearing.
• arrange for someone to take notes
• arrange for another manager to attend the hearing to act as a witness to the proper conduct of the hearing

You should also ensure the employee has:

• plenty of time before the meeting to prepare their case and consult any 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.

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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
• allow the employee to see any documents they haven’t already seen
• 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.

If an employee raises a separate grievance during a disciplinary hearing, you may have to call a halt to the hearing and deal with the grievance first.

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.

If 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, 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 let them know 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 employment tribunal 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 material for their defence if they wish.

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Dealing with grievances raised during disciplinary procedures

At some point during the disciplinary process, the employee concerned may raise a grievance.

If this happens, you should suspend the disciplinary process and deal with the grievance. If the grievance and disciplinary cases are related, you should try to deal with them together.

For more information about grievances, see our guide on handling grievances.

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Disciplinary action you can take

After a disciplinary hearing, you could decide to:

• drop the issue completely
• issue another – or 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 special 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 employment tribunal claims, you should ensure disciplinary actions are outlined in the employee’s contract of employment.

Dismissal as a disciplinary action

The most severe disciplinary penalty is dismissal. Normally you should only dismiss if – throughout the disciplinary process – you have:

• issued warnings, either formal or informal
• made it clear that if the employee failed to improve their conduct or performance they could be dismissed

In gross misconduct cases, you may be able to dismiss an employee immediately without giving notice or pay in lieu of notice. This is called summary dismissal and is generally not recommended.

Ideally, for any misconduct you should:

• investigate the incident fully
• suspend the employee on full pay during the investigation where necessary

For more on investigations, see the page in this guide on investigating disciplinary issues.

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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 to 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.

Appeals to external bodies

Some industries have procedures for dealing with appeals agreed between employer bodies and trade unions. This should be stated during the disciplinary procedure. The construction industry is one example of where this happens.

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 employment tribunal could increase any compensation it awards to the employee.