Handling Disciplinaries

Handling disciplinaries
Table of contents
Introduction Disciplinary procedures and the employment contract Setting out disciplinary rules and procedures Investigating disciplinary matters Informal and formal disciplinary action The statutory dismissal and disciplinary procedures Preparing for a disciplinary hearing Holding a disciplinary hearing Dealing with grievances raised during disciplinary procedures Types of disciplinary penalty Appeals against disciplinary decisions Helplines Related guides on businesslink.gov.uk Related web sites you might find useful
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Handling disciplinaries | Created by Business Link on 16 September 2009 14:45 Crown copyright 2007
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Subjects covered in this guide
Introduction
Introduction Disciplinary procedures and the employment contract Setting out disciplinary rules and procedures Investigating disciplinary matters Informal and formal disciplinary action The statutory dismissal and disciplinary procedures Preparing for a disciplinary hearing Holding a disciplinary hearing Dealing with grievances raised during disciplinary procedures Types of disciplinary penalty Appeals against disciplinary decisions Helplines Related guides on businesslink.gov.uk Related web sites you might find useful This guide outlines what you need to put in your procedures, how to handle disciplinary issues in practice, and what disciplinary penalties you can apply. Failure to meet this requirement may result in extra compensation for the employee if they succeed in a tribunal claim. be set out in writing follow the good-practice principles set out in the Acas code of practice on disciplinary and grievance procedures Even in well-run businesses, it may sometimes be necessary to take disciplinary action against employees. Therefore it's crucial that you have written disciplinary rules and procedures. If problems do arise, these procedures should help dissuade employees from making tribunal claims and ensure you deal with employees fairly. Your rules and procedures should:
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Disciplinary procedures and the employment contract

You must by law tell each employee about: your disciplinary rules your disciplinary/dismissal procedure the name of the person to whom they should appeal if they are unhappy about a disciplinary or dismissal decision
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This information can be included in the employee's written statement or the written statement may refer the employee to a document where they may read the information, eg in a staff handbook. If you fail to provide this information to an employee, they could be awarded two or four weeks' pay - but only if they succeed in another employment tribunal claim against you, eg unfair dismissal. The contractual status of disciplinary procedures Your dismissal/disciplinary procedure does not automatically form part of an employment contract. Therefore, an employee cannot claim breach of contract if you fail to follow it. However, if you 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. See our guide on the employment contract or use our interactive tool to create a written statement of employment.
Your disciplinary rules should - at the very least - cover conduct issues relating to: 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, eg use of the internet, or particular websites such as Facebook, instant messaging services, web-based email, company email and telephones This list is not exhaustive - you cannot cover everything that might lead to disciplinary action and there may be other rules you need to include for your type of business. Your rules should make it clear that if an employee fails to meet the minimum standards of conduct, you may begin disciplinary action against them. See our guide on how to set up employment policies for your business. The rules should also give examples of the type of behaviour you will treat as gross misconduct - misconduct judged so serious that it's likely to lead to dismissal without notice such as: bullying and harassment drunkenness/drug abuse fighting at work fraud gross negligence/insubordination
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Setting out disciplinary rules and procedures

It's important that you tell your employees about your rules governing what behaviour is unacceptable in the workplace - and the consequences if you find they have breached them. Setting out disciplinary rules
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. Setting out disciplinary procedures Your disciplinary procedure should accord with the good-practice 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 any compensation it may award the employee by up to 25 per cent. Consulting employees on your disciplinary rules and procedure You may want to consult with your employees when putting together your disciplinary rules and procedure. If you have any workplace representatives, it may be more convenient if you carry out this consultation via them, ie via either trade union or, if there are none, elected employee representatives.
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 the evidence of witnesses any recent changes to the job any previous incidents whether the employee has received appropriate counselling or training any mitigating circumstances, eg health or domestic problems, or provocation Once you have taken these factors into account, review the evidence to determine whether there is: a case to answer, or whether the case is serious enough for disciplinary measures 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 matter. 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. However, try to avoid unpaid suspension as it may appear to penalise an employee before any disciplinary hearing has taken place. Criminal offences
Investigating disciplinary matters

When faced with a potential disciplinary matter, carry out a full investigation before
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Don't dismiss someone merely because they have been charged with or convicted of a criminal offence, either at work or outside it. You should investigate what action is justified given the employee's role and consider whether it affects their suitability to carry on. If it does, use your normal disciplinary procedure. If it doesn't, decide whether you can keep their job open during any period of absence. Base your decision on a reasonable belief following an investigation into the circumstances. However, if a criminal charge has been made, don't put off taking appropriate, fair and reasonable disciplinary action merely because the outcome of the prosecution isn't yet known.
misconduct In cases of misconduct, you should have a meeting with the employee to explain the disciplinary procedure and your reasons for going ahead with it. After this, you could either drop the matter or issue: a verbal warning a written warning a second written warning, or a final written warning, if necessary
After giving a warning, you should allow the employee time to improve their behaviour. You should only issue a further warning or hold a formal disciplinary hearing if the previous warning has no effect. If you decide that you need to hold a formal disciplinary hearing, this is the point at which the statutory dismissal and disciplinary procedures (SDDPs) begin to apply - but only if you started the disciplinary action before 6 April 2009. If you started the disciplinary action on or after 6 April 2009, you don't need to follow these procedures. However, your procedure should accord with the good-practice principles set out in the Acas code of practice on disciplinary and grievance procedures. Find guidance on which rules apply to the disciplinary action you're taking on the Department for Business, Innovation & Skills (BIS) website - Opens in a new window. In certain cases of very serious misconduct, it may be appropriate to bypass a stage in order to deal with the matter quickly.
Informal and formal disciplinary action

If an employee's performance or conduct does not meet your standards, you should try to help that employee to improve. Have an informal discussion with the employee as soon as problems arise, explain the problem and agree actions with them. This kind of informal chat is not part of any formal disciplinary procedure. If the employee's poor conduct or performance persists, you may have to take formal disciplinary action. Note that the employee has the right to be accompanied at the formal disciplinary meeting by a colleague or union representative. Formal disciplinary action for
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Formal 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 - eg training - 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, you should consider issuing a verbal warning. Carry out a further review - if performance still hasn't improved, you should consider issuing a written - or final written - warning. If their performance continues to fail to meet the required standards, you should consider either issuing a final written warning or, if you have done this already, holding a formal disciplinary hearing. This is the point at which the SDDPs begin to apply - but only if you started the disciplinary action before 6 April 2009. If you started the disciplinary action on or after 6 April 2009, you don't need to follow these procedures. However, your procedure should accord with the good-practice principles set out in the Acas code of practice on disciplinary and grievance procedures. For more information on the SDDPs, see the page in this guide on the statutory dismissal and disciplinary procedures.
You must follow one of the statutory dismissal and disciplinary procedures (SDDPs) below if you started taking disciplinary/dismissal action against an employee before 6 April 2009. There are standard and modified SDDPs. In almost all cases, you should follow the standard one. Transitional arrangements for applying the statutory procedures You do not have to follow the appropriate SDDP when the 'trigger event' occurs on or after 6 April 2009. The trigger event could be either: the date you start the disciplinary or dismissal procedure - usually the date you send a letter to the employee informing them that you are contemplating dismissing them or taking disciplinary action against them the date of the disciplinary action/dismissal itself, when no such letter has been sent However, you still have to follow the appropriate SDDP where the trigger event occurred before 6 April 2009. This is the case even if - after that date - you: held or will hold the disciplinary hearing held or will hold an appeal hearing (if requested) In these circumstances, you cannot agree with an employee not to follow the SDDPs.
The statutory dismissal and disciplinary procedures
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Find out more about transitional arrangements for the SDDPs on the Department for Business, Innovation & Skills (BIS) website - Opens in a new window. The standard SDDP The standard SDDP has three stages: 1. Inform the employee in writing why you are contemplating dismissing or taking some other disciplinary action against them and invite them to a meeting. Make sure you give them enough time to prepare. Provide the employee with copies of any evidence that you may use at that meeting. 2. Hold the meeting with the employee. After the meeting, inform them of your decision and, if you have decided to dismiss them or apply a disciplinary penalty, notify them of their right to appeal. If new information arises during the meeting that may affect your decision, end the meeting and investigate the matter further. Rearrange the meeting if necessary. 3. If the employee wishes to appeal, invite them to a further meeting. See the page in this guide on appeals against disciplinary decisions. The employee has the right to be accompanied at both meetings by a colleague or union representative. The modified SDDP The modified SDDP only applies in very rare cases of gross misconduct, ie where an employee's misconduct is so bad that you dismiss them immediately, eg fighting or
drunkenness. The procedure has two stages: 1. Written statement - give the employee a written statement setting out the conduct that has resulted in their dismissal and informing them of their right to appeal. 2. Appeal meeting - if the employee wishes to appeal, they must inform you. Hold an appeal meeting and then inform the employee of your decision. The employee has the right to be accompanied at the meeting by a colleague or union representative. You have to follow the 'old' Acas code of practice on disciplinary and grievance procedures throughout the entire disciplinary process, as the code is taken into account by tribunals when dealing with unfair dismissal claims. Download the old code of practice on disciplinary and grievance procedures from the Acas website (PDF, 327K) Opens in a new window. In addition, if you fail to follow the appropriate SDDP and the employee's tribunal claim is successful, their compensation can be increased by up to 50 per cent. When the SDDPs don't apply The law sets out some circumstances where you don't have to follow the appropriate SDDP. These are where:
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It's not possible for employment to continue, eg where the workplace burns down and no suitable alternative premises are available. You dismiss an employee for taking industrial action (although in the case of lawful, officially-organised action, special arrangements apply). Owing to factors beyond your control, it is effectively impossible for you to complete or even start the procedure, eg if the employee leaves the country or becomes seriously ill. You dismissed the employee because it would be illegal to continue to employ them, eg where you employed them as a driver but they became disqualified from driving and there was no suitable alternative work for them to do. The issue concerned is a collective one, eg where you are under a duty to consult workplace representatives in a collective redundancy situation or where you dismiss a group of employees but immediately offer them re-employment on different terms and conditions. When the employee's behaviour is so violent or unreasonable that you cannot be expected to go through the procedure with them. This exemption is to cover cases where you have real reason to fear violence, harassment or vandalism, not just where the employee is being difficult or unpleasant. Carry out a full investigation. See the page in this guide on investigating disciplinary matters. Make sure you have all relevant facts and documents (including details of any past disciplinary action taken against the employee) available for the hearing. Inform any manager and witnesses who may need to attend. Obtain witness 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. Arrange a suitable time, date and venue for the hearing. You should also ensure the employee has: plenty of time so they can 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 their right to be accompanied at the hearing by a colleague or trade union official copies of any documents you intend to rely on as evidence against the employee If the employee is a trade union official, it is advisable to discuss the case with a full-time trade union officer or senior trade union representative.
Preparing for a disciplinary hearing

Before you hold a disciplinary hearing: Familiarise yourself with your disciplinary procedure so you apply it correctly.
Holding a disciplinary hearing

For any disciplinary hearing:
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penalty the reasoning behind the 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 the right of appeal and how this should be carried out - see the page in this guide on appeals against disciplinary decisions Dealing with delays If the employee is genuinely unable to attend the disciplinary hearing, eg because they are ill, offer them an alternative at a reasonable date and time. If the employee's companion cannot make the re-arranged hearing, the employee must propose another date and time no more than five days after your proposed date. If the employee fails to attend the rearranged hearing, this stage of the procedure is complete and you can make your decision there and then. Don't forget that you will still have to tell them in writing of the decision and that they have the right to appeal. Note that if you cannot make the hearing, you must offer the employee an reasonable alternative date and time. It is important that you notify the employee as soon as possible of any delays. If you fail to do so, a tribunal could increase any compensation awarded against you. Dealing with long-term absence An employee may well become anxious and
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ensure that it's private and won't be interrupted introduce everyone and explain why they are present 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 ensure that you get all the facts relating to the complaint 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 during the hearing that the employee has a satisfactory explanation for their conduct/performance, stop the hearing and take no further action. Also stop the meeting if the employee is too distressed to continue or further investigation seems necessary. 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. See the page in this guide on dealing with grievances raised during disciplinary procedures. Informing the employee of your 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 - see the page in this guide on types of disciplinary
stressed in the run-up to a disciplinary hearing. This can lead in some cases to them being absent for weeks or even months due to stress-related illness. If this situation arises, you can ask the employee's GP and/or an occupational health specialist for a medical report. (You must gain the employee's agreement before doing so.) You should ask for the report to state whether or not the employee is fit enough to attend a hearing in the near future: If they are deemed fit enough, you should arrange the hearing with the employee in the normal way. If not, you might not be able to complete the disciplinary procedure without unreasonable delay. In this situation, you can treat the procedure as having been completed and make a decision in the employee's absence. However, you should still tell the employee that they can supply written material for their defence if they wish.
If this happens, you should suggest that, after the hearing, they raise a formal grievance in writing. However, if you begin to doubt why the the disciplinary action is being taken, you should end the meeting. You should then make further investigations to confirm that the reasons for taking the action are sound and justifiable. If the employee formally raises a grievance after a disciplinary hearing but before any appeal hearing, you can discuss this at the appeal stage. The appeal hearing will also become a grievance hearing and the two procedures will overlap. If the employee formally raises a grievance during or after any appeal hearing, you will have to complete your grievance procedure in full. For more information about grievances, see our guide on handling grievances.
Types of disciplinary penalty

After a disciplinary hearing, you could: drop the matter issue another written - or a final written - warning provide counselling or training to help resolve the matter apply a disciplinary penalty, eg demotion or dismissal Take account of factors such as the employee's previous record and any special circumstances in making your decision. For a list of possible factors to consider see the page in this guide on investigating
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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. For example, they may claim that: the disciplinary action involves unlawful discrimination the real reason for you taking the disciplinary action is not the one you claim it is
disciplinary matters. Disciplinary penalties other than dismissal If you feel that the employee's misconduct or poor performance was not bad enough to dismiss them, provided their contract allows, you could: transfer them to another job demote them fine them, eg by non-payment of bonuses suspend them without pay - this is not very common these days and means that you lose the employee's services for a time To avoid potential claims to an employment tribunal, you should expressly provide for any of these sanctions in the contract of employment. See our guide on the employment contract. Dismissal The most severe disciplinary penalty is dismissal. Normally you should only dismiss if - during the entire disciplinary process you have: Issued warnings. Made it clear that if they failed to improve their conduct or performance they could be dismissed. Followed - at the very least - the standard statutory dismissal and disciplinary procedure (SDDP). Failure to do so will make any dismissal automatically unfair. Note, however, that this only applies if the disciplinary action began before 6 April 2009.
For gross misconduct you may be able to dismiss immediately without giving notice or pay in lieu of notice. However, summary dismissal is generally not recommended. Ideally, for any misconduct - gross or otherwise - you should: investigate the incident fully suspend the employee on full pay during the investigation where necessary follow the standard SDDP if necessary - although this only applies if the disciplinary action began before 6 April 2009 For more on investigations, see the page in this guide on investigating disciplinary matters. For more information on the SDDPs, see the page in this guide on the statutory dismissal and disciplinary procedures.
Appeals against disciplinary decisions

An employee has the right to appeal against your decision following the disciplinary hearing. You must notify them of this right when you write to give them the decision. Give them a deadline to notify you of their intention to appeal, eg within ten working days. If the employee does appeal, you must try to hold the appeal hearing without unnecessary delay. Preparing for an appeal hearing Before you hold an appeal hearing:
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Familiarise yourself with the appeal stage of your disciplinary procedure to ensure that you are applying it correctly. Make sure you have all relevant facts and documents, especially if you have come across new evidence since the first hearing. Arrange a suitable time, date and venue for the hearing. Inform the worker in plenty of time so they can prepare their case and consult any representatives. Remind them that they have the right to be accompanied at the hearing by a colleague or trade union official. Inform any manager and witnesses who may need to attend. Obtain witness statements from any witnesses unable to attend the hearing. Arrange for someone to take notes. If possible, arrange for another manager to attend the hearing to act as a witness to the proper conduct of the hearing. If this is not possible, eg where there is only one manager and one employee, the person holding the meeting must be impartial. Holding an appeal hearing The principles for holding an appeal hearing are generally the same as for the initial disciplinary hearing - see the page in this guide on holding a 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
shouldn't be the same person that heard the initial hearing, eg a more senior manager who has not been involved with the disciplinary process at all. They will be able to hear any appeal without having any assumptions. However, where the person hearing the appeal is the same person who heard the first hearing, they should act impartially and make sure they review the original decision carefully. You should write to the employee with your decision and the reason for it as soon as possible after the hearing. Make it clear, if this is the case, that the decision is final. Appeals to external bodies Some industries, eg the construction industry, have procedures for dealing with appeals agreed between employer bodies and trade unions. This should be stated during the disciplinary procedure. Dealing with delays If the employee is genuinely unable to attend the appeal hearing, eg because they are ill, you must offer them an alternative at a reasonable date and time. If the employee's companion cannot make the rearranged hearing, the employee must propose another date and time no more than five days after your proposed date. If the employee fails to attend the rearranged hearing, this stage of the procedure is complete and you can make your decision there and then. Don't forget that you will still have to tell them in writing of the decision.
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Note that if you cannot make the hearing, you must offer the employee a reasonable alternative date and time. It is important that you notify the employee as soon as possible of any delays to the appeal process. If you fail to do so, a tribunal could increase any compensation awarded against you.
Dispute resolution guidance on the Acas website - Opens in a new window Handling discipline and grievance training courses on the Acas website Opens in a new window Which rules apply to the disciplinary action you're taking on the BIS website Opens in a new window Right to be accompanied at disciplinary hearings guidance on the Acas website Opens in a new window Sample disciplinary procedures on the Acas website - Opens in a new window
Helplines
Acas Helpline 08457 47 47 47
Related guides on businesslink.gov.uk

Use our interactive tool to create a written statement of employment | Use our interactive tool to help you follow the correct disciplinary procedure | Improve the performance of your staff | The employment contract | Dismissal | Handling employment tribunal claims | Keep the right staff records | Set up employment policies for your business | Bullying and harassment | Work effectively with trade unions | Working with employee representatives | Making an employee redundant | Industrial disputes | Comply with data protection legislation | Manage absence and sickness | How to deal with stress | Handling grievances | Prevent discrimination and value diversity | Issue the correct periods of notice |
Model letters and notices of disciplinary matters on the Acas website - Opens in a new window Download disciplinary and grievance procedures code of practice from the Acas website (PDF, 327K) - Opens in a new window
Related web sites you might find useful

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Handling disciplinaries

Subjects covered in this guide

Disciplinary procedures and the employment contract

Setting out disciplinary rules and procedures

Investigating disciplinary matters

Informal and formal disciplinary action

The statutory dismissal and disciplinary procedures

Preparing for a disciplinary hearing

Holding a disciplinary hearing

Types of disciplinary penalty

Dealing with grievances raised during disciplinary procedures

Appeals against disciplinary decisions

Related guides on businesslink.gov.uk

Related web sites you might find useful

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