To take disciplinary proceedings against an employee, you should follow a fair procedure which can be time consuming.
Can we help?
- If you are an employer embarking on a disciplinary procedure, check out the information below, but also consider our effective disciplinary procedures service.
- If you are an employee, take a look at our workplace representation page after looking through the information below.
Preparing to start the procedure
Before starting on any procedure:
- remember to check the employee’s contract and your company handbook and ensure that you act in accordance with the procedure set out there;
- read the ACAS code of practice on disciplinary and grievance procedures. The code should be followed in all cases where disciplinary procedures could result in a formal warning. Unreasonable failure to comply with the code (by either party to proceedings) may have financial consequences for the party who has failed to comply.
- you should act promptly; do not let misconduct proceedings drag on for weeks.
- if the employee has a disability which is in any way connected to the allegation (e.g. an employee with ME caught sleeping on the job), you need to consider the effect of the Equality Act. Please be careful with disability! The definition of “disability” is very wide, and you might not be aware that the employee has a disability.
Stage 1: investigation
You should hold a formal hearing until you have properly investigated the facts.
The basic rule to remember is that at the hearing you may only rely on such evidence as you have given the employee in advance.
In other words, if you have an allegation to put to an employee, you need to be able to back it up with evidence. This might simply be a short witness statement from an employee, or you may need to prepare documents which prove some point.
Some key points to remember are:
- The more serious the matter, the more thorough the investigation should be;
- the aim of the investigation is to provide all the relevant evidence in a format which allows the allegations to be looked at easily (i.e. a paginated “bundle” of documents);
- the standard of proof is “on the balance of probabilities,” not “beyond reasonable doubt (in other words you need to prove something is more likely than not rather than beyond doubt)”. Relevant evidence also includes that which supports the employee’s case;
- the evidence may consist of documentary evidence, witness statements and circumstantial evidence;
- it may be a good idea to appoint an investigating officer; some “independent” person not involved in the subject matter at hand;
- you should not begin disciplinary proceedings until you are sure that there is a proper case to answer. In some cases this may mean holding an investigatory meeting with the employee before starting the procedure;
- suspension with pay at this stage should only be imposed after careful consideration. The period of suspension should be kept brief, be kept under review and it should be made clear that it is not a disciplinary action.
Stage 2: invitation to disciplinary hearing
You need to write to the employee to invite them to a disciplinary hearing. You will need to set out the allegations of misconduct and possible consequences. Please ensure that the timing and location of the hearing are reasonable.
If you are suspending the employee and there is good reason to request the employee not to contact third parties such as other staff, or clients for instance, you can make this clear in the letter suspending the employee. If you are suspending, make sure that you act very quickly so that the employee is suspended for as brief a period as possible. The ACAS code of practice states that suspension without pay should only be imposed after careful consideration. The period of suspension should be kept brief, be kept under review and it should be made clear that it is not a disciplinary action.
- Note the employee’s right to be accompanied at the hearing by a companion.
- Check if the employee has any formal warnings outstanding on the file.
- Note that if there is any chance that the employee may be dismissed at the hearing, you must warn the employee of that fact in advance. This should normally only be the case if the employee is accused of gross misconduct, or is already on a final written warning.
Stage 3: the hearing
The hearing has three simple aims:
- To ensure that a reasonable investigation into the facts has been undertaken and that there are no “gaps” in the investigation; and
- Based on that evidence, to make a reasonable decision as to whether the allegations are upheld; and
- If the allegation is upheld, to decide on a reasonable sanction to impose.
You will probably have taken witness statements from the witnesses as part of the investigation. These statements should normally be sufficient for the purposes of the hearing. If the employee wants further information from any of the witnesses it may be appropriate to adjourn the hearing or ask the further questions after the hearing (but before any decision is made). Only in circumstances where it would be unfair otherwise (of where the witness is happy to attend) should a witness attend the hearing and get “cross-examined” by the employee accused of the allegation/s. The employee may bring his / her own witnesses as required.
Don’t make your mind up until the hearing is finished
Do not give any indication during the hearing (or before) that may lead the employee to conclude that you have made your mind up about the result, before the hearing is complete! Many employers have “given the game away” with loose language throughout the hearing. It is important that the employee sees that what they say is taken into account before any decision is made.
It might be a good idea not to give the decision at all at the end of the hearing, but write to the employee with the decision. This can avoid unpleasant situations!
Note of hearing
Please note that it is very important that you keep a note of what is said at the hearing.