Quick guide to taking disciplinary action

Need to take disciplinary action? Here’s our quick guide to keeping you on the right track.

When your organisation employs people, it’s inevitable that at some point you may need to take disciplinary action.

If you find yourself in this position, it’s vital you have an effective disciplinary process that complies with both employment law and the ACAS code. You should also have your own disciplinary policy in place, so you must follow that too.

When conducting a disciplinary process, it’s really important to do it by the book and you don’t miss any steps. Not only to complete this process in the most effective way, but also in a way that protects you and your organisation from any potential claim against you, which could prove to be very expensive.

We’ve created this guide to help you understand what these steps are. But this guide should not be used as a substitute to seeking advice from an expert HR professional.

Why might you need to take disciplinary action?

Generally speaking, disciplinary procedures cover two broad categories of conduct:

• Capability or performance - If your employee is unable to do their job to a satisfactory standard it may be down to inadequate training, unacceptable absence, or something else. Here it’s important to identify the reason and offer support before taking formal steps.
• Misconduct or improper behaviour - This encompasses a wide variety of unacceptable workplace behaviours, from theft to poor timekeeping, bullying to harassment.

Gross misconduct is where misconduct is deemed extremely serious or may have a serious effect. In such cases, a disciplinary procedure should still be carried out, but you may decide on dismissal without notice or pay. Examples of gross misconduct include fraud, violence, or gross negligence.

The process – before you begin

It’s really important that from the very beginning to the very end, you follow a fair procedure.

When you’ve tried to resolve an issue informally without success, it’s time to start a disciplinary procedure. You’ll need to inform your employee straight away. This should be done in writing and include information about the alleged conduct, as well as the potential outcomes of the meeting, such as a written warning.

Through the procedure, keep lines of communication open with the employee being disciplined, but also with any other staff who’ve been affected by the case. You should also keep your employee’s mental health and wellbeing in mind during a disciplinary procedure.

The process – investigation

Your investigation into the alleged conduct should begin as quickly as possible.

The idea is to find out what happened and decide whether a disciplinary meeting is necessary.

If possible, someone not involved in the case should carry out the investigation. It’s also a good idea to have a different person handle each step – the investigation, the disciplinary hearing and outcome, and any appeals.

In cases where it’s possible your employee could tamper with evidence or coerce witnesses, it’s OK to conduct your investigation before you inform the employee of the issue. Or in very serious cases, it may be appropriate to suspend your employee while investigations are being carried out (on full pay).

Keep written records of conversations, as well as other evidence you may discover, like emails, phone records, or text messages.

When you invite employees to a disciplinary investigation meeting, there is no legal right for them to be accompanied. However, it’s good practice to allow it. This may be a colleague or a union representative.

The person investigating may conclude the report with their recommendation. This could be to take one of three actions:

• Formal action – such as a disciplinary hearing, making changes to a policy or procedure, or further investigation.
• Informal action – like training or coaching, counselling, mediation, or notification that further conduct issues will result in disciplinary action.
• No further action.

The process – disciplinary hearing

Your disciplinary hearing should be held as soon as possible after the investigation, while giving your employee the necessary time to prepare.

Write to your employee detailing the alleged conduct, evidence from your investigation, information that you will be discussing, the date, time and location of the hearing, and details on your employee’s right to be accompanied. You should also include the possible outcomes of the meeting.

During your meeting, you as the employer should explain the issue at hand. Go through the evidence and make sure someone else is there to take notes.

Allow your employee to set out their case, answer your allegations, ask questions, and show their own evidence. They may also wish to call their own witnesses.

At the end of the hearing, you should take some time to consider the case before you make your decision on the action to be taken. Tell your employee when and where you’ll reconvene. This could be later the same day, the next day, or in a couple of days’ time, depending on the amount of information you need to consider.

It’s important that you take all of the findings into account and decide on a fair outcome. You should then inform your employee of your decision as soon as possible. Outcomes may include:

• No further action - Make it clear that there is nothing to be concerned or worried about anymore, and that work should continue as usual.
• A formal warning - this could be a first written or final written warning.
• Action short of dismissal - Other outcomes of the hearing may be to move the employee into a less responsible role, but you must check that this complies with your employment contracts first.
• Dismissal - if the behaviour amounts to gross misconduct or follows a final written warning. This should only be decided by a manager with the authority to do so.

Your employee may appeal if they feel the outcome is too severe, the procedure was handled incorrectly or unfairly, or if there is new evidence. Another manager/more senior manager (where possible) will arrange to meet with the employee to hear their case and decide whether to uphold the appeal. This may mean removing the warning or reducing the sanction applied.

As you can see, there’s a lot involved in a disciplinary procedure and it’s really important that you don’t miss even one step. When a procedure like this is mishandled, it has the potential to become an even bigger headache for you, potentially leading to costly legal action.

We’d always advise you take expert advice from HR professionals if you find yourself needing to begin a disciplinary process. That way you can feel assured that you’re taking the correct steps at the right time, that you’re acting fairly and treating everyone equally.

As always, if this is something we can help you with, just give us a call.