The 10 Steps of Taking Disciplinary Action

In this guide we look at the process for taking disciplinary action, from what to do when it becomes clear action is needed, through investigation, disciplinary hearings, the appeal process and also what needs to be confirmed in writing.

The purpose of disciplinary action is twofold:

• To improve the conduct and performance of employees to the required standards, or
• Where the individual is unwilling or unable to do this, to dismiss them in a fair, professional and timely manner but also in a way in which the organisation is able to avoid, or at least strongly defend, Tribunal claims.

Although taking disciplinary action against an employee is an emotional time for all involved, it is important to remember that it is a necessary process to ensure that unacceptable behaviour is not repeated. This can always be done in a firm but fair and humane way.  

Following the 10 steps explained in this guide will enable organisations to achieve this. The guide has been compiled by the founder and director of 186hr, Peter Appleby, who has vast, proven experience in managing disciplinary action, having specialised in employment law and employee relations issues for over 20 years in senior HR roles for companies of all sizes and in many different sectors, and through his status as a Chartered Fellow of the CIPD.

Along with Peter’s expertise in this area we have drawn on the latest guidance, regulations and best practice from both ACAS (see www.acas.org.uk) and the CIPD (see www.cipd.co.uk) when producing the guide.

The 10 steps are as follows:

1. Decide whether the unacceptable behaviour is due to performance or conduct.
2. Consider Suspension.
3. Appoint an investigator and identify who will hold the disciplinary hearing.
4. Investigate the matters of concern.
5. Decide whether disciplinary action is appropriate.
6. Issue Notice of Disciplinary Hearing Letter.
7. Hold the Disciplinary Hearing.
8. Make an Outcome Decision.
9. Confirm the Decision in Writing.
10. Hear any Appeals against the disciplinary outcome.

The Law regarding Disciplinary Action

There is very little employment law that is specific to disciplinary action. However, ACAS have produced a Code of Practice that Tribunals take into account when deciding on the merits of any cases and the process followed. They expect employers to have followed it.

Therefore, although it is not a legal ‘requirement’ to follow the Code, failure to do so may mean an employer loses a Tribunal, and also risks any compensation awarded to the Claimant being uplifted by up to 25 percent for failure to follow a reasonable process.

For a more comprehensive guide that includes more detailed explanations of each stage of the disciplinary process, CIPD approved model policy documents, CIPD approved model letters covering every eventuality of each stage, along with 2 hours of telephone-based consultation with a highly experienced, highly CIPD qualified senior HR professional click here. The guide is compliant with the ACAS Code of Practice and costs £249 plus vat.

Disciplinary Policy

It is a legal requirement that all employers have a disciplinary policy. Although it is possible   to include details in the employment contract or ‘Written Statement of Employment Particulars’ this has unintended consequences that normally mean it should be avoided and a separate, non-contractual policy introduced.

The disciplinary policy underpins the employment relationship, providing the employer with an opportunity to set out clear rules about the way employees should behave and the standards it expects of them. It also explains the process that will be followed if employees fail to do this, and the method by which the employee will be able to justify / defend their actions in a hearing before any disciplinary decision is made.

The disciplinary policy should cover both conduct and performance issues. Although similar in terms of process, they should be treated separately for disciplinary purposes.

We’ll now move on to the 10 steps in the disciplinary process that should be followed when managing unsatisfactory conduct or performance. Please note that managing absence is not covered in this guide, we will be producing a separate guide in the near future regarding absence management and absence dismissals.

Step 1. Decide whether the unacceptable behaviour is due to performance or conduct

The processes for taking disciplinary action for conduct and poor performance are very similar. However, the letters you issue will be worded differently and it is important to distinguish between the two right from the start and be clear with the individual whether the action you are taking is related to their conduct or their performance.

It is not unusual for an individual to have issues with both their conduct and their performance at the same time. If that is the case then, although they can be covered in the same hearing, they still need to be separated in terms of the outcomes of the process e.g. disciplinary warnings for both.

Frustratingly, with the two processes needing to be separate this means that if an individual has had conduct issues in the past and has e.g. a live written warning on file for that, if they then have a performance issue this would not result in a final written warning being given due to the accumulation of previous warnings. In these circumstances the individual’s written warning for conduct would remain on file and they would in addition be given the appropriate warning for performance.

Step 2. Consider Suspension

If the allegations against the individual(s) are serious you may consider suspending them on full pay. These days it is rare for an individual to be suspended, it is generally reserved for cases where:

• there is a genuine belief that the individual may interfere with the investigation,
• there is genuine fear for the safety of other employees if the individual remains on company premises, or
• what the individual has been accused of is so bad that you cannot risk having them on site.

If it is possible to avoid suspension through actions such as moving the individual to another site or department, asking them to work from home, changing their working hours or increasing their supervision levels, this should be considered and if, after consideration, you decide to suspend afterall then the reasons for that decision should be documented in case you are challenged over this at a later point.

Remember that suspension from work while the organisation investigates a disciplinary issue is not a disciplinary sanction in itself, it is purely a practical act while the allegations are looked in to. At this stage nothing has been proven.

After the suspension meeting the employee would normally be asked to collect any belongings and then be escorted from the premises. The suspension should then be confirmed in writing.

It is important to then communicate with the employee during their suspension. They would normally be suspended for an initial 7 days, after which the suspension should be reviewed.

This approach to suspension may be news to longstanding managers as it used to be the case that if an employee was accused of potential Gross Misconduct the advice was to always suspend the individual, and that failure to do so would count against the company in a Tribunal as ‘if it is so bad that you treated it as gross misconduct and summary dismissal then surely you wouldn’t have allowed them to continue working on site’. That is no longer the case as the individual should be presumed innocent until it is found otherwise. These days suspension is a last resort and should only take place in the above circumstances.

Step 3. Appoint an investigator and identify who will hold the disciplinary hearing

Unless there are exceptional circumstances, the individual who investigates the misconduct or poor performance must be different to the individual who holds any subsequent disciplinary hearing i.e. the same person should not be both investigator and judge!

Both individuals should have been trained in the process and ideally be experienced in such matters. If not, following the full guide, along with the 2 hours of HR support included will normally be sufficient to manage the process to a high standard.

It is usual for an individual’s line manager to hold the disciplinary hearing but some organisations prefer to appoint an independent manager to try and avoid any accusations of bias.

Finally, when deciding who will hold the disciplinary hearing, remember that if the accused employee appeals against the outcome, that appeal should be heard by a manager or director who is more senior than the disciplining manager. Therefore, you may wish to avoid a director holding the initial disciplinary hearing as that may mean the MD would have to hear any subsequent appeal and they may not thank you for that!

Step 4. Investigate the matters of concern

The investigation needs to be full, fair and balanced but it does not need to be to the standard of a police or forensic investigation. This means that the evidence needs to be strong enough so the disciplining manager can make a sound decision based on ‘the balance of probability’ not ‘beyond reasonable doubt’ as required in criminal Police investigations.

According to ACAS, when investigating a disciplinary issue there needs to be a clear process that follows these steps:

• Gather all relevant available information e.g. initial reports, photographs, CCTV footage, performance figures, training records.
• Make a list of any witnesses, prepare questions beforehand and then interview each individual, taking notes. Then ask each individual to confirm the resulting statement or transcript is an accurate record of the meeting.
• When obtaining evidence keep it factual where possible, although it is often important evidence to find out how the events made the witness feel.
• Towards the end of the investigation process the accused employee should be interviewed. This involves putting the allegations and evidence to them and getting their views on what happened. Any claims or counter claims they make should then be investigated and any witnesses they put forward interviewed.

Unless your policy states otherwise (not recommended) you do not need to give anyone, including the alleged perpetrator, notice of the investigation interview i.e. you can simply call people in to the office and interview them. Although notice needs to be given of a disciplinary hearing (see later) this is not the case for investigation interviews. If you decide to give witnesses and / or the accused employee notice of the investigation meeting, model letters to do this are included in the full guide.

Also, again unless your policy states otherwise (not recommended) you do not need to allow people you interview as part of the investigation, including the accused employee, representation in an investigatory meeting, unlike in the disciplinary hearing.

Once the investigator has interviewed all potential witnesses and reviewed any documentation or footage of the incident they should write a clear report summarising the evidence and pass this to the disciplining manager, along with the evidence, for them to decide whether disciplinary action is warranted (although some organisations prefer the investigator to decide. Both approaches are accepted at Tribunal although at 186hr we prefer the investigator to remain neutral and the disciplining manager to take such decisions rather than have an outcome imposed on them to action that they may not agree with).

Please see the full guide for a more comprehensive explanation of the investigation process, the CIPD model policy on conducting disciplinary investigations, along with CIPD approved model letters to adapt to the circumstances.

Step 5. Decide whether disciplinary action is appropriate

The disciplining manager / director should review the investigation report along with the evidence and decide whether a disciplinary hearing should take place.

It is important to stress here that, although the manager is deciding whether to hold a disciplinary hearing, they should avoid making judgements as to the individual’s guilt or innocence at this stage. It is the purpose of the disciplinary hearing for the manager to obtain sufficient information to decide whether, on the balance of probability, the individual is guilty of what they are being accused. This will be based on: the evidence; any explanations in the hearing by the individual; plus any mitigation the individual may have e.g. things going on in their personal life that may have influenced them to act as they did.

Having said that, where relevant and based on the evidence, prior to the hearing the disciplining manager may decide that disciplinary action is not warranted in which case the options available to them are: no further action; training; or an informal warning that does not require a disciplinary hearing. The outcome should then be confirmed in writing. See the full guide for model letters to adapt.

If the disciplining manager decides a disciplinary hearing should take place they should then decide which section of the policy applies i.e. conduct, performance, or gross misconduct.

Examples where the disciplinary policy for conduct would apply are:

• Poor timekeeping,
• Unauthorised absence,
• Misuse of company property,
• Failure to follow company procedure.

Examples where the disciplinary policy for poor performance would apply are:

• Failure to achieve target,
• Not adhering to company service standards,
• Not achieving the required activity levels.

If the actions are considered to be gross misconduct, examples would normally include:

• Theft
• Fraud
• Violent conduct,
• Serious act of harassment or discrimination.

Step 6. Issue Notice of Disciplinary Hearing Letter

Once the disciplining manager decides that a hearing needs to take place this should be confirmed in writing to the individual. Some organisations ‘invite’ employees to the hearing but we prefer to word it that the employee is ‘required to attend’, as this is a formal process, and individuals can decline an invitation!

According to ACAS the following should be confirmed in the notice of hearing letter:

• Which policy is being followed.
• The specific allegations.
• The date, time and venue of the hearing (the disciplinary policy will confirm minimum timescales. Usually at least 48 hours’ notice must be given of the hearing).
• The right to be represented at the hearing (see below).
• What documents are enclosed. This should include all evidence that will be referred to at the hearing, including witness statements. It is best practice to also enclose the disciplinary policy.

Right to be accompanied

At the hearing the individual has a statutory right to be accompanied if they wish, but there is no requirement for them to be accompanied if that is their choice. Unless your policy states otherwise (not recommended) Representatives should be limited to either a work colleague or a union official if the employee is a member of a union.

You should refuse requests for an individual’s solicitor to attend, except in certain specific circumstances where this is allowed e.g. a doctor who may be struck off if found guilty.

Step 7. Hold the Disciplinary Hearing

The disciplining manager should chair the hearing and there will normally be 3 other individuals present: a note taker; the employee being disciplined; and their Representative if they have brought one.

The disciplining manager should start the hearing by explaining which policy the hearing is being held under i.e. conduct, performance, or gross misconduct and introducing all present / their roles in the hearing.

They should then summarise the specific allegations and ask relevant questions regarding each one so they can fully understand the employee’s explanations and defence. Either party may call and interview witnesses if they choose to.

When all relevant questions have been asked, the disciplining manager should check if the employee has anything else they wish to add before the hearing closes, or if there are any mitigating factors they would like considered, then close the hearing and summarise what happens next, including:

• Any further action to be taken e.g. anything that needs further investigation.
• The employee will receive a copy of the notes taken at the hearing and be asked to confirm they are an accurate record, or to make any appropriate alterations.
• An expected timescale by which a decision will be made (you should always sleep on it before making a decision even if the evidence is clear).
• Explaining that the outcome will be confirmed in writing, along with how to appeal against the decision if the individual doesn’t agree with it.

Notes taken at the hearing should then be typed up and sent to the individual for them to either agree they are accurate or amend accordingly.

The full guide includes a CIPD recommended format for holding disciplinary hearings and note taking, along with a more detailed explanation of what to include in the hearing and CIPD approved model letters.

Step 8. Make an Outcome Decision

After considering all of the evidence and sleeping on it the disciplining manager should then make a decision from the following options:

• No further action.
• Training.
• An informal warning.
• Verbal warning for a first minor offence (if your policy includes verbal warnings).
• Written warning for a more serious offence or where a verbal warning is live on file.
• Final written warning for serious misconduct, or for gross misconduct where there is mitigation, or where there is a live written warning on file.
• Dismissal with notice for serious misconduct if warranted, or where there is a live final written warning on file.
• Summary dismissal without notice pay for gross misconduct.
• An alternative sanction to summary dismissal for gross misconduct e.g. demotion or a period of unpaid suspension.

Step 9. Confirm the Decision in Writing.

The disciplining manager should decide whether it is best to simply send the outcome letter to the individual or meet with them and hand it over.

Where the outcome of the hearing is a formal warning, according to ACAS the letter should include as a minimum:

• Whether it is a verbal, written or final written warning.
• The nature of the employee’s misconduct or unsatisfactory performance.
• The changes or improvements in behaviour / performance required.
• The timescales for improvement.
• The period of time the warning will remain live on file before it becomes ‘spent’ as per the disciplinary policy e.g. 6 months for a written warning etc.
• What will happen if there is further misconduct or insufficient improvement in performance, for example, further disciplinary action or dismissal.
• The employee’s right to appeal against the warning, who they should appeal to and within what timescale (as per the company’s disciplinary policy).

Where the outcome is dismissal, clearly some of the above will not apply and you should also include practical arrangements in the letter such as whether notice will be paid / needs to be worked, what salary, holiday pay, bonus will be paid / when, and when the individual will receive their P45.

The full guide includes more detailed explanations of the outcome process, along with CIPD approved model letters for all potential outcomes of the hearing that can be adapted to the specific circumstances.

Step 10. Hear any Appeals against the disciplinary outcome.

Unless it is simply not practical, the appeal should be heard by a manager or director who is more senior than the individual who made the disciplinary outcome decision.

The employee should be asked to put in writing exactly what they are appealing against. For example it may be that they feel the sanction is unfair or too harsh, or the disciplining manager ignored certain evidence that should have changed the outcome in their view, or they may disagree with the outcome for some other reason. You should ask the individual to clarify exactly what it is they are unhappy about as that will form the basis of their appeal.

Alternatively, although rare, the individual may wish to treat the appeal hearing as a complete re-hearing and that should be allowed.

Unless stated in the company’s disciplinary policy, there are no specific rules on when an appeal hearing needs to take place, the employer simply needs to act ‘reasonably’ with regards to timescales. We advise contacting the individual within 7 days of receipt of their appeal to inform them of the process that will be followed and the expected timescales.

The individual should be given the required notice of the appeal hearing in writing, as specified in the disciplinary procedure. This is normally at least 48 hours, the same as for the disciplinary hearing.

The same rules apply to appeal hearings as the disciplinary hearing regarding who the individual may or may not bring as a Representative.

The format of the appeal hearing should be very similar to the format of the initial disciplinary hearing except to confirm that the decision will be final, with no further right of appeal.

The appeal manager should then consider the evidence, sleep on it and make a decision, which should be confirmed in writing.

Other Considerations in the Disciplinary Process

All of the following are covered in more detail in the full guide, along with CIPD approved policy wording and model letters. The guide is compliant with the ACAS Code of Practice and costs £249 plus vat. Click here for further details.

‘Spent’ Warnings

Where there are already warnings on file for an employee, when considering the outcome of a disciplinary hearing the disciplining manager must consider whether those warnings are relevant or ‘spent’ i.e. whether the warning can be escalated to the next level or the previous warning(s) should be disregarded for disciplinary purposes. The disciplinary policy will clarify the timescales for when warnings become spent, normally 3 months for a verbal, 6 months for a written and 12 months for a final written warning.

Mitigation, Past record and Consistency of Decisions

When deciding on the outcome of a disciplinary hearing the manager should take these into account. Mitigation, where an employee explains that they acted as they did due to other factors e.g. they may be going through a divorce or a loved one is seriously ill, may lead to a lower level of warning or no warning at all – remember the primary purpose of disciplinary action is to change behaviour and that may not apply if the reason for the behaviour is not work related.

Likewise, a long previous unblemished record should be taken into account regarding the level of warning given and, of course, outcomes need to be consistent and in line with previous decisions unless there are justifiable reasons not to do so.

Gross Misconduct

What constitutes gross misconduct should be clarified in the company disciplinary or gross misconduct policy, which will list examples such as theft, fraud, discrimination etc. The process followed is the same as for the disciplinary process although the outcome is normally summary dismissal.

What if the employee raises a grievance at the same time as their disciplinary?

Generally, if the grievance is relevant to the disciplinary then disciplinary action should be suspended while the grievance is investigated and the outcome decided. However, if this is not practical e.g. if the allegations are of gross misconduct, ACAS advise that it may be appropriate to run both processes concurrently.

What if an employee goes off sick at the same time as their disciplinary or appeal hearing?

It is not unusual for this to happen, especially due to the stress of being disciplined. The general rule is that a disciplinary or appeal hearing should be postponed and rearranged at least once due to an employee’s sickness e.g. if you receive a 7 day doctor’s certificate, rearrange the hearing for after that date.

After the hearing has been postponed at least once, if the employee is still too poorly to attend, they should be given options such as appointing a Representative to act on their behalf in the hearing, or submitting a written defence for the disciplining or appeal manager to consider. If the employee does not wish to do either of these then the employer may need to hold the hearing in their absence and base the decision on whatever evidence is available at the time.

Short Service Disciplinary Process

We recommend having a ‘short service’ section in your disciplinary policy where unsuitable employees can be dismissed during their probationary period without any previous warnings, and employees who have passed their probation but have under 2 years’ service receive one written warning and then be dismissed rather than following the normal 4 stage disciplinary process.

Anonymous witnesses

Agreeing to anonymity should be avoided wherever possible. However, there are times when individuals insist on remaining anonymous e.g. for fear of reprisals, and in these circumstances it is acceptable to use such evidence but clearly it is not ideal as the accused employee cannot then properly challenge the witness’s evidence so they may feel unfairly treated.

If the individual being disciplined wishes to challenge the anonymous evidence the disciplining manager should ask for full details, adjourn the hearing and interview the witness, then resume and explain the outcome / answers to the questions.

What if an employee is charged with a criminal offence during the disciplinary process, whether related to work or not?

The CIPD model policy for this is included in the full guide. The Police may require the company to cease their internal processes during a criminal investigation, in which case the organisation may need to suspend the individual on full pay until the Police investigation is complete.

Important Note regarding this guide

This guide complies with the ACAS guidance regarding disciplinaries. It has not, however, been possible to cover every single eventuality so you should take further advice if in doubt e.g. from 186hr, an employment lawyer, ACAS or other trusted source.

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