Disciplinary Action Flowchart

Employment-Law-Compliant Guide to Stages of Disciplinary

Procedure
Welcome to Employment Law Clinic’s disciplinary flowchart.

This tool is designed to assist employers in ensuring you properly

understand all the steps necessary in dealing with a disciplinary process;

if you follow all the steps this should help protect you from having to

defend an unfair dismissal – or at least allow you to defend an unfair

dismissal effectively, as the guidance complies with the current ACAS

Code of Practice on Disciplinary & Grievance Procedures.

Even with guidance, making sure a disciplinary is fair & balanced can be

difficult, and you are therefore advised to consider seeking expert

assistance before taking any action.

The flowchart provides live links with more details: click on any stage

(the ovals) and you will be taken to commentary on that stage in the

disciplinary process.

The weight of the lines between the stages signifies the importance of

these: light broken arrows mean employers should be considering the

action, although it will not often be appropriate; unbroken arrows imply

the next stage is essential.

 

Determine Probable Level of Misconduct

Once the likely level of misconduct has been determined, the employer will be able to determine

what action to take next.

The nature of the misconduct will be obvious in some occasions, but as the disciplinary policy will

only include the type of conduct that could fall into each category, it will be necessary for an

employer to make a reasonable judgement in many cases of suspected misconduct.

These will be determined according to the nature of the company, as some matters may be more

important in some workplaces, and a failure to follow these requirements could be more of a

disciplinary offence in these circumstances.

Typical examples of misconduct could include:

 Minor (breaches of the rules or required standards, but not of an nature serious

enough to warrant dismissal or more formal action initially)

o Poor Time-keeping

o Personal use of telephones, etc

o Regular or unauthorised absences

o Failure to act on a reasonable instruction

o Poor performance

 Serious (breaches of the rules or required standards of a nature serious enough

to warrant dismissal in some instances)

o Insubordination

o Continued poor performance after appropriate support & training

o Incapability due to drugs or alcohol

o Serious misuse of computers of other equipment

o Repeated incidents of minor misconduct

 Gross (breaches of the rules or required standards of a nature serious enough to

warrant dismissal in all instances)

o Serious insubordination

o Theft or Fraud
 o Violence or bullying

o Serious breach of confidence

o Serious neglect of health & safety procedures

Repeated offences of minor misconduct may also be treated as serious misconduct. However,

it’s important to remember, this is misconduct for which there have been charges brought against

the employee – informal action (when formal disciplinary charges are not applied) does not

count, and it is only repeated minor misconduct for which charges has been brought when

repeated minor misconduct should be treated as serious misconduct.

For more advice & support, contact Employment Law Clinic, see the Disciplinary & Grievance

Pages of the site, or Return to the Flowchart for further stages.

Appears to be Minor Misconduct

In cases of minor misconduct, it will often be practical & sensible to deal with this informally. This

will not lead to any formal action being taken against the employee, and unless there is further

misconduct – when a more formal approach should be considered – this issue should not be held

against the employee in the future… except of course if there is a repeat offence, the employer

should ensure formal action follows.

Employers should be cautious not to use the option of an informal discussion instead of more

formal action simply to avoid being too heavy-handed. Formal disciplinary action for minor

misconduct is not heavy-handed, and with the appropriate action taken, should a further incident

arise the employer will now be ready to consider if this should be escalated to serious

misconduct.

Where formal charges are brought against the employee, it will be important that these are still

documented & the employee has a clear knowledge of this. Despite the apparent contradiction,

even the issuing of a verbal warning should be reiterated in writing – this will simply advise that a

verbal warning has been issued, but will not increase the level or status of the disciplinary

penalty.

In cases where the employer considers formal action is appropriate, the employer should

commence the process by advising the employee of the potential misconduct, and proceed with
an appropriate investigation from there. In other cases, the concerns should simply be addressed

as part of any good management process, with an informal discussion about the incident.

For more advice & support, contact Employment Law Clinic, see the Disciplinary & Grievance

Pages of the site, or Return to the Flowchart for further stages.

Address with Informal Discussion

In most cases of minor misconduct, the employee may have had no intention of misconduct, and

may not even have realised their actions were misconduct.

Once the area of concern has been identified, it will often be possible to deal with this through

appropriate support – for performance or attendance issues, either providing more training or

making reasonable adjustments in the workplace that could help improve attendance.

For more advice & support, contact Employment Law Clinic, see the Disciplinary & Grievance

Pages of the site, or Return to the Flowchart for further stages.

Arrange appropriate support

Whatever the outcome of the disciplinary process – whether summary dismissal (dismissal on

the spot), dismissal with notice (serve out the notice period before the dismissal takes effect), a

lesser disciplinary penalty, or no disciplinary penalty – the employer has a responsibility to their

employee, and should ensure appropriate support is provided.

If you have decided to summarily dismiss, you should ensure the employee is able to gather any

personal belongings in a manner that causes the least difficulties. This may involve a supportive

approach as they return to their workplace, but as this will often be in full view of colleagues, it

would often be better to arrange a quieter time to arrange this if practical.

Employers should take care to ensure the employee is only removing their own property, but you

should try to act sensitively in observing any packing the employee finds necessary, as you don’t

want to portray any more level of distrust than is appropriate & necessary in the circumstances.

Where dismissal is preceded by notice, the employer should ensure the employee is given

appropriate support & responsibilities through the remaining term of their employment – the

appointment is continuing, and work appropriate to the contract & grade should continue to be

assigned, although this may be restricted where necessary & appropriate to the disciplinary

action.
Where a lesser penalty has been issued, if this involves for example a demotion, the employer

should help the employee settle into the new role, and adapt to the lack of responsibility or

increased management attention associated with this position. In other cases, the employer

should remember that disciplinary action is aimed principally at improving performance, and

continue to support & promote the necessary improvement in the future conduct of the employee.

If no disciplinary penalty is issued, the employer will still need to acknowledge the difficulties &

stress a disciplinary procedure will have had on an employee. It is imperative that the employer

provides the necessary support for employees that have been considered for disciplinary action,

and ensure they understand the employer needs to investigate suspected offences although this

is not an assumption of guilt on the employee by itself.

For more advice & support, contact Employment Law Clinic, see the Disciplinary & Grievance

Pages of the site, or Return to the Flowchart for further stages.

Appears to be Serious/Gross Misconduct

Cases that appear to be serious or gross misconduct must never be ignored. Equally, it is

important for employers not to jump to conclusions or otherwise make assumptions about the

perceived misconduct, let alone reach any conclusions about the likely outcome of the case. At

this stage, there is a suspicion that the employee’s conduct is inappropriate, but until the matter

has been properly looked into, employers should assume nothing, and not determine the acutal,

or even likely, outcome.

In the most serious circumstances, employers should consider suspension now, but this will be

rare, with a real & genuine risk to the interests of the company suspected.

For more advice & support, contact Employment Law Clinic, see the Disciplinary & Grievance

Pages of the site, or Return to the Flowchart for further stages.

Advise Employee of Potential Miscondcut

As you have determined that there is possible or probable misconduct, it is only appropriate you

alert the employee to this. Natural justice & good employment relations require you to give the

employee notice of the issues you suspect they are guilty of; any concerns that this notice will

allow an employee to prepare an excuse or otherwise hide the facts, or adjust their conduct

should not deter this.

As the notice of suspected disciplinary action is what the investigation will be based on, and the

employee’s input will be to comment on this, it is important that this is clear & unambiguous:

rather than writing ‘you are being investigated for poor time-keeping’, expand this to provide

examples that support this – you apparently arrived at 10:10 on Monday, 1 December, and 10:30

on Tuesday…

The letter should also make clear that this is alleged misconduct – for reasons that may not yet

be obvious, it is possible that there will be perfectly reasonable explanations for the conduct.

Therefore, you should make clear that this is not a disciplinary charge, but an investigation into a

disciplinary matter; a charge will follow if necessary.

In all cases for which you have issued a disciplinary charge, you will then need to conduct an

investigation.

For more advice & support, contact Employment Law Clinic, see the Disciplinary & Grievance

Pages of the site, or Return to the Flowchart for further stages.

Consider Suspension
During the disciplinary process, employers will need to actively consider whether suspension is

appropriate. This decision does not need to be taken at the start of the process, it can be

reached at any stage that it seems appropriate, if information comes to light that justifies the

same.

Suspension during a disciplinary process is not a disciplinary penalty in itself. It is an option

available, normally applied only for gross misconduct, that temporarily removes the employee

while disciplinary matters are investigated & the facts determined. As this is not a penalty,

employers should normally continue to pay the employee for the time suspended – which should

be as brief as possible, and certainly no longer than a week.

For more advice & support, contact Employment Law Clinic, see the Disciplinary & Grievance

Pages of the site, or Return to the Flowchart for further stages.

Formal Investigation
A disciplinary investigation does not always need to be exhaustive in its nature, leaving no stone

unturned; these should be reasonable, given the nature of the alleged misconduct & all other

circumstances.
A charge of minor misconduct will not require an investigation as intense as a charge of gross

misconduct, although the employer should still be satisfied they have investigated sufficiently to

hold a reasonable view of what happened. A charge of gross misconduct will often require the

most intense investigation – this could justify dismissal, even as a first offence, so it’s important

the employer has reasonable grounds to support this action – although even then, in some

instances this could be brief if the evidence available is strong & the employee does not offer a

convincing explanation for their conduct.It is normally preferable wherever possible to have the

investigation conducted independently – the manager that will make any decision based on the

findings of the investigation should, wherever possible, arrange for another manager or someone

external to gather the facts impartially, and present these in a balanced manner: remember, the

investigation is intended to gather facts, not make or influence the final decisions.

Once an investigation has been concluded, the employer should decide what action to take

against the employee. This will either be to treat the matter as minor misconduct that can be

dealt with by an informal discussion; to proceed with disciplinary charges against the employee

(in these cases, employers should again consider whether suspension is appropriate); or to

conclude that there is insufficient evidence to proceed.

For more advice & support, contact Employment Law Clinic, see the Disciplinary & Grievance

Pages of the site, or Return to the Flowchart for further stages.

Disciplinary Charges Issued

If an employer holds a reasonably based view that there is a disciplinary charge to answer, the

full details of this should be set-out in writing to the employee. The letter should also invite the

employee to a disciplinary meeting, and fully explain their rights in regard to this.

For more advice & support, contact Employment Law Clinic, see the Disciplinary & Grievance

Pages of the site, or Return to the Flowchart for further stages.

Disciplinary Meeting
A disciplinary meeting should be arranged, wherever possible at a time mutually convenient to all

parties. In a small number of cases, the employee will claim all dates/times offered are

inconvenient to them, or any companion. In these instances, the employee should suggest a

suitable time within a reasonable time-scale (five days is typically fine although this may vary for
different circumstances), but where agreement cannot be reached, the employer should set a

final date, and advise the employee that the meeting will proceed without them if necessary.

It will be important, even if cases for which the employee does not attend, to proceed with a

disciplinary hearing. This will typically involve a minuted record that the managers were present,

and considered the investigation & any other information available to them, and also decided

whether to proceed on the basis of that, or give the employee a further opportunity to attend a

meeting (providing the manager has been flexible & given the employee a reasonable

opportunity to attend a meeting, giving a further opportunity will not normally be necessary).

For more advice & support, contact Employment Law Clinic, see the Disciplinary & Grievance

Pages of the site, or Return to the Flowchart for further stages.

Decision
The employer should reach their decision only on the facts of the case, as far as reasonably

established. It is important not to allow prejudices or other suspicions to influence the decision-

making.

Employers should remember always to act consistently: there will be unique elements to any

case, but in cases with predominantly the same issues, any actions or penalty should be similar.

The employer should consider the current record of the employee in making any decision: a

disciplinary warning will normally be exhausted after a period of time, so unless current these

should not be considered in any decision.

In cases of gross misconduct, the decision may be to dismiss for a first offence. In other cases,

dismissal will be exceptional, although it may be appropriate in some circumstances for serious

misconduct.

The decision should be reached as promptly as possible after the disciplinary hearing (while

taking sufficient time to reflect on anything said at the hearing), and should be advised in writing

to the employee.

For more advice & support, contact Employment Law Clinic, see the Disciplinary & Grievance

Pages of the site, or Return to the Flowchart for further stages.

Appeal
Disciplinary procedures should always include an opportunity for an appeal, wherever possible to

a more senior person than that who took the initial decision; in the smallest companies, this may
not be possible, in which case a suitably qualified independent person may be brought in to hear

this. Where the same manager needs to hear the appeal, they should act as impartially as

possible from their earlier decision.

The appeals process is not an opportunity for the employee to present new evidence, but for the

employer to consider whether the original process was fair & reasonable in all the circumstances.

The appeal should be set out in writing, and should give clear details of what is being appealed –

the findings, the disciplinary penalty, or both.

Where the findings are being appealed, the main focus of the appeal should be to consider the

original disciplinary process, and whether this was reasonable in all the circumstances. If the

employer is satisfied this was, the appeal can be dismissed; if there is a reasonable argument

that the investigation should have covered more, consideration should be given to upholding the

appeal, and arranging a further investigation.

Where the disciplinary penalty is being appealed, the main focus of attention should be whether

the original decision was reasonably made & was appropriate in all the circumstances. If this is

not to be found so, the original decision should be substituted; otherwise the appeal may be

dismissed – although the manager may still reduce the initial penalty if they consider it

appropriate in the circumstances of the cases. This will normally be the final outcome in the case,

so it is important to ensure you are comfortable with the decision being reached.

The decision from the appeal should be a reasonable one in all the circumstances (the

confidence of the management responsible for earlier actions should not undermined, although

bringing in a wider perspective & the knowledge of a more senior manager can assist the other

manager in their judgement for future cases; overturning a decision on appeal does not mean the

original decision was necessarily wrong in the circumstances). This should be reached as soon

as possible & notified to the employee in writing.

In cases where a dismissal has been overturned, the employer should consider appropriate

support in getting the employee back into their employment with minimum fuss or unnecessary

attention.

For more advice & support, contact Employment Law Clinic, see the Disciplinary & Grievance

Pages of the site, or Return to the Flowchart for further stages.

Final Outcome
The employee will have no further appeal internally at this stage, so before this final decision is

reached, the employer should satisfy themselves that all procedures have been properly & fully

followed; the disciplinary penalty is appropriate in the circumstances; and they would be

confident in defending this at an employment tribunal in case the employee elect to take a claim.

The final outcome should never be pre-determined, but will be a decision reached when all the

facts have been considered in a balanced manner. After the appeal, it could be the case that the

original decision is upheld, the decision is set aside, or the decision is substituted with an

alternative decision.

The decision needs to be reached in a reasonable time-scale, but should never be rushed out.

Instead, as soon as the appeal has been received, the person due to make the final decision

should set-aside sufficient time to consider & absorb all the facts before reaching a decision.

As soon as a decision is reached, this should be put in writing and provided to the employee.

Given the difficulties the employee has gone through in this whole process, the employer should

be supportive & considerate when delivering this final decision: rather than leave an envelope on

the employee’s desk, give notice to the employee of when the decision is likely to be available,

and book a meeting to deliver the letter in person. While not legally obligatory, these little steps

will at least help to demonstrate that the employer has been considerate in their processes, not

crassly reaching decisions & then casually letting the employee know these.

Regardless of the outcome, the employer should continue to be supportive of the employee.

For more advice & support, contact Employment Law Clinic, see the Disciplinary & Grievance

Pages of the site, or Return to the Flowchart for further stages.

No Further Action
In some instances, your suspicions of misconduct will prove to be unfounded – either the matter

of concern was not actually as first perceived, or there were acceptable explanations for this that

mean formal disciplinary penalties are not appropriate.

Employers should notify the employee as soon as possible when a conclusion has been reached

that no further action is necessary – the employee will often be concerned about the threat of

disciplinary action, so as soon as it is known that no further action will be required, this should be
communicated to the employee – ideally, you should speak to the employee to advise them of

the conclusion but always confirm this in writing.

It will still be important to keep full records of the matter, noting that nothing further occurred as

well as the reasons for this decision. Employment tribunals will always look for & expect

consistency from employers – you can’t treat one employee differently to another for the same

offence and with the same circumstances. Having records to support your decision not to pursue

action in any given instance will assist employers in defending their actions, should another

employee bring a claim to an employment tribunal – the employer will be able to explain the

reasons why the cases were not equal, and why action was justified in one but not another case.

For more advice & support, contact Employment Law Clinic, see the Disciplinary & Grievance

Pages of the site, or Return to the Flowchart for further stages.