Disciplinary Procedure: Steps and Actions

Caragh Bailey
05/11/2020
132
9 min read
disciplinary procedure advice from employment law friend

Disciplinary procedure is your employer’s way of handling any problems with your performance or your behaviour, including absence. It might also be referred to as a written warning procedure, because a written warning is a common outcome.

Obviously no-one likes to get in trouble, but it is best to think of a disciplinary at work as an opportunity to explain yourself, hear their side and to work together with your employer to make things better for everyone.

Your employer might raise the issue with you informally, in a private conversation first, where they might issue you with a verbal warning (they tell you that if the issue continues, you may face a disciplinary procedure).

However, they can go straight to a formal disciplinary procedure, especially if the issue was gross misconduct.

You could face a disciplinary at work for misconduct outside of work, if it reflects poorly on the business or organisation.

It is good practise to begin keeping a diary of your disciplinary process from the very first informal conversation. Including writing your own account of the event(s) in question, while they are fresh in your mind. This will help you to build a case, if, in future, you want to bring a case to the employment tribunal.

Disciplinary Act

Here are some examples of the types of acts which are grounds for a disciplinary procedure, categorised by severity.

Performance
  • Failing to meet sales targets
  • Failing to meet time requirements/deadlines
  • Producing work of poor quality
Misconduct
  • Bullying
  • Harassment
  • Refusing to carry out certain tasks (Insubordination)
  • Unauthorised absence
  • Persistent lateness
Serious Misconduct
  • Cause serious harm to the business
  • Cause serious damage to the organisation’s public relationship.
Gross misconduct
  • Fraud
  • Violence
  • Endangering the safety of others (Gross Negligence)
  • Refusing to follow direct instructions from a supervisor (Serious Insubordination)

(Click here to read more about gross misconduct)

Your employer might have a written disciplinary procedure of their own, which should have been made available to you when you began your employment with them. They may include their own examples of misconduct and gross misconduct.

Even if they do not have their own formal disciplinary procedure, they must follow the Acas code of practise on disciplinary and grievance procedures.

If they fail to follow the code of practise, this will be considered by the judges if the case goes on to the employment tribunal. Make a note of any ways you think they’ve breached the code of practise, or their own disciplinary procedure, in your diary.

Have you been dismissed as a result of an unfair disciplinary procedure?
You may have a case for unfair dismissal. Get in contact with us and we can review your case, we’ll never advise you to hire a solicitor if we don’t believe you have a worthwhile case.

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At any stage of the disciplinary process, your employer can decide that the formal procedure is no longer necessary. They can handle the issue informally instead.

What are the steps in the disciplinary process?

    1
    To begin a formal disciplinary procedure, your employer must tell you in writing.
They should clearly explain:
  • The alleged misconduct or poor performance
  • Possible outcomes
  • (This could be anything from a formal warning, to dismissal without notice or pay in lieu of notice, depending on the severity of your case. Of course, if it is found that you were not at fault, there may be no consequences at all).

The investigation will dictate when your hearing (meeting) can be held. If they expect the investigation to be brief, they must still give you plenty of notice to prepare for your disciplinary meeting. Less than 48 hours notice is unlikely to be considered reasonable. They’ll need to give you enough time to arrange for a companion to attend (if you want one) and to collate any relevant evidence or witness statements.

    2
    Next they must carry out an investigation
Click here to read about the full workplace investigation process.

It is important that they begin the investigation as soon as possible, so that the issue is fresh in the minds of anyone who is asked to give a statement. If you have reason to believe they have delayed the investigation to de-legitimise witness statements, make a note of this in your diary.

The purpose of a disciplinary investigation is:
    a
    To see if there is a case to answer.
    • Has your performance dropped?
    b
    To make sure everyone is treated fairly
    • Has performance dropped across the team, or just with you?
    c
    To gather evidence from all sides.
    • You may show that your performance is being affected by illness or disability, making it a capability issue, beyond your control.
    d
    To help the employer see what should happen next.
    • They should open a capability procedure, if they have one. Or, otherwise investigate what support, training or encouragement you need to improve.


    3
    If the investigation report shows that formal action is necessary, your employer will notify you of a disciplinary meeting (hearing)
They must tell you:
  • The alleged misconduct or performance problem
  • A copy of the investigation report
  • Any written evidence, including witness statements
  • Anything else they plan to bring up in the meeting
  • When and where the hearing will be held. (This must be as soon as possible, allowing you time to prepare)
  • What types of people you can choose from to accompany you to the meeting. (You are entitled to bring a companion)

By law you can bring a companion:
At your employer’s discretion, you could instead bring:
  • A work colleague
  • An official employed by your trade union
  • A workplace trade union representative with relevant training
  • A professional support body
  • Partner
  • Legal representative (Solicitor)

Reasonable Adjustments
Your employer must make reasonable adjustments for you if you are disabled. This could include allowing someone else to attend your disciplinary meeting, to support your disability needs specifically.

If you have a long term illness or mental health issue, such as depression, you may be entitled to reasonable adjustments too. Click here to find out whether you are protected by disability discrimination law at work.

    4
    You must make every effort to attend the disciplinary meeting (hearing). Your employer will explain the alleged issue and go through the evidence.
You will have the opportunity to:
  • Explain your side
  • Confirm or deny the alleged wrongdoing
  • Ask questions
  • Show evidence and call witnesses
  • Respond to any witness information

They should make sure that someone takes notes, but it may help for you to make your own, or ask your companion to.

    5
    After the disciplinary meeting: Your employer should tell you when you can expect a decision and what the possible disciplinary measures might be.

What are the disciplinary measures?

Verbal warning
If you are otherwise a good employee and have no other disciplinary incidents on your record this may be solved by an informal discussion with your boss.
First written warning
If this is your first disciplinary procedure.

They must:
  • Set out what they expect you to change, and over what length of time.
  • Warn you what could happen next. (Final written warning).
  • Tell you if they will provide any support (in cases of performance).
Final written warning
In cases of serious misconduct or performance issues, your employer can skip verbal and first written warnings.

They must:
  • Set out what they expect you to change, and over what length of time.
  • Warn you what could happen next. (Dismissal).
  • Tell you if they will provide any support (in cases of performance).
Demotion
If your contract allows, instead of dismissal, your employer could give you a different job with less responsibility.

They must discuss this with you fully, you can bring your companion to this discussion.
Dismissal
If you are guilty of gross misconduct, or you have had more than one disciplinary process, and a final written warning.

If the person handling your hearing is not authorised to dismiss you they must hand the decision over to an authorised manager.

They must tell you:
  • Why you’ve been fired
  • When your contract ends
  • What your notice period is
  • Your right to appeal

    6

    Appealing a disciplinary outcome

If you think their decision was too severe, or; if your employer has failed to meet the terms of your workplace’s disciplinary procedure, or the terms of ACAS’ Code of Practise on grievance procedures you can appeal.

    1 Write to your employer, telling them that you are appealing and explaining why. For example:
  • The decision was unfair
  • The decision is not consistent with a similar disciplinary in the past
  • You have new evidence to disprove your guilt
  • The procedure was not carried out properly

    2 You should be offered a meeting to discuss your appeal.
  • This will be similar to your original meeting.
  • You have the right to be accompanied by a companion (colleague/union representative)
  • If possible this meeting should be held by a different person to your original disciplinary meetings, and hold a higher position.

    3 You will receive your employer’s final decision in writing as soon as possible. To reach a decision your employer must:
  • Hear your appeal
  • Check if the procedure was followed properly
  • Check if the outcome was fair
  • Consider any new evidence
  • Carry out another investigation, if necessary
  • Consider a more appropriate outcome, if there is one
  • Complete the above in a reasonable time period

Frequently Asked Questions
Your employer must carry out an investigation to gather balanced evidence to see if there is a case to answer. However, if there is a clear cut case of misconduct, this investigation may take less than a day.

Have you been dismissed as a result of an unfair disciplinary procedure?
You may have a case for unfair dismissal. Get in contact with us and we can review your case, we’ll never advise you to hire a solicitor if we don’t believe you have a worthwhile case.


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This content is provided free of charge for information purposes only. It does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of our company. For employment law advice please get in contact and speak to your employment law solicitors.
 
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