It is important in all disciplinary matters not only to be fair but to be seen to be fair to the employee concerned. Most employers are aware of the need to follow a fair procedure so as to avoid claims of unfair dismissal to employment tribunals.
Employers who are considering dismissal or taking action short of dismissal (such as demotion) in disciplinary cases are legally required to follow the statutory dismissal and discipline procedure, which is set out in the Employment Act 2002 (Dispute Resolution) Regulations 2004. The statutory procedure is the minimum standard required under the law and is intended to complement rather than replace any other workplace discipline procedures which may already be in existence. Failure to follow the statutory dismissal and discipline procedure will make any dismissal on disciplinary grounds automatically unfair (provided the employee has at least one year’s service) and the employee’s compensation may be increased by up to 50%.
Employers are legally required to provide employees with a written document which specifies the person to whom the employee can apply if he/she is dissatisfied with an employer’s decision to take disciplinary action against him/her or dismiss him/her. The document must also set out any disciplinary rules which apply to the employee and the disciplinary procedure which will be followed if the need arises. This information may be included in the employee’s written terms and conditions of employment or employment contract. Alternatively, the written statement or contract may refer the employee to a separate document to which the employee has easy access.
In many cases the right word at the right time and place may be all that is needed and will be a more satisfactory method of dealing with minor misconduct or poor performance than a formal interview. However, a formal discipline procedure should be followed whenever an employee is not performing properly or is failing to comply with necessary standards and where the problem cannot be solved by positive informal counselling. The procedure is not there to be used solely when dismissal is likely to prove necessary but also as a way of indicating to an employee that improvements are needed and to help the employee to make those improvements and to meet expected standards. However, where an employee is dismissed for misconduct and brings a claim of unfair dismissal before an employment tribunal, the basic test is always whether the employer acted reasonably. This is the major point on which the tribunal will make its judgement. The key to ensuring that a dismissal is fair and that the employer acted reasonably is to follow meticulously a published discipline procedure which incorporates the statutory dismissal and discipline procedure, as set out in the Dispute Resolution Regulations, and includes the employee’s right to representation and the right to appeal. The ACAS Code of Practice has long been the blueprint for company discipline procedures.
The statutory procedure requires an employer who is considering dismissal or action short of dismissal to:
If the employee appeals, hold an appeal hearing at which a more senior manager reviews the decision and confirm the outcome of the appeal in writing.
Employers should note that if an employee is dismissed and is then re-employed or re-instated on
For a suitable discipline procedure, which complies with the statutory requirements and is based on the ACAS model, please see Discipline Procedure. It is important that all employees are aware of the procedure. It should be referred to in your contract of employment and included in your staff handbook or displayed on notice boards.
Because of the potentially serious consequences, you should call the ABDO HR Service Advice Line before embarking on any disciplinary action.
The disciplinary interview
It is important that no one is in any doubt about the nature of the interview which is about to take place. The best way of doing this is to tell the employee that you wish to conduct an interview of a disciplinary nature and set the time of the interview, which should normally be at least 48 hours in advance. You should set out in writing to the employee which aspects of his conduct or performance will be the subject of discussion and let him/her have copies of any documentary evidence which will be referred to in the interview. Advise the employee that he/she has the right to have a work colleague or trade union representative present. You should also arrange to have another member of the management team present as a witness and to take detailed notes.
If the time set by you for the disciplinary hearing is not convenient for the employee’s chosen representative, then the employee is entitled to a postponement of the meeting to a mutually convenient time within the next five days. Where an employee brings a colleague to the meeting, you must be careful not to subject or allow the colleague to be subjected to any unfavourable treatment because of his/her attendance. For guidance on how to conduct a disciplinary interview, please see Step by step guide to conducting a disciplinary interview.
After any warning or dismissal you should advise the employee of his/her right of appeal, which forms part of the discipline procedure. Confirm the name of the person who will deal with the appeal and remind the employee of any time limits for lodging it.
If you are the manager responsible for hearing an appeal, you should arrange a meeting without delay. Approach the meeting with an open mind. Do not prejudge. As with a disciplinary hearing, you must be seen to be fair. For guidance on how to deal with an appeal against a disciplinary decision, please see Step by step guide to dealing with an appeal against disciplinary action.
Certain disciplinary offences are so serious as to constitute gross misconduct. Though not an exhaustive list, some examples of gross misconduct include drunkenness, fighting and proven theft and should be listed in your discipline procedure and company rules. These are actions by the employee which go to the root of the contract of employment and destroy it. If proved, the result for the employee will be summary dismissal without notice or pay in lieu of notice.
Even when an employee has been caught “red handed”, it will still be necessary to follow the formal discipline procedure and hold a properly conducted disciplinary interview. It may be necessary to suspend the employee on full pay, to allow an investigation to take place or tempers to cool.
Letters to confirm each stage of the discipline procedure
It is vitally important that any warning letter states clearly why the employer is invoking the disciplinary procedure and the consequences for the employee if the conduct is repeated or he/she fails to make a required improvement. If a dismissal is a possible consequence, the letter should state this explicitly. Never issue a warning letter unless you have held a disciplinary interview and never hold a disciplinary interview unless you have conducted a detailed investigation into the facts of the case.
For a letter requiring an employee to attend a formal disciplinary hearing, please see:
For suitable letters confirming disciplinary warnings, please see:
For a letter to confirm an employee’s suspension from work, pending an investigation into alleged gross misconduct, please see:
For letters confirming dismissal, please see:
If the employee lodges an appeal against the disciplinary action which has been taken, it will be necessary to hold an appeal hearing. Use the following link for letters which confirm the appeal hearing and the result.
Disciplinary warnings record
Disciplinary warnings records should be held (securely) and completed by the person who holds personnel records. Details for the records can be obtained from warning letters which are kept in the employee’s personal file.
Many disciplinary procedures contain the provision that disciplinary warnings expire after a certain period of satisfactory conduct. Some disciplinary procedures may go further and state that warnings will be removed from the personnel file after this time. This would comply with the fourth data protection principle to keep personal data for no longer than necessary. However, it is strongly advised that a disciplinary procedure does not refer to the removal of warnings to ensure that employees are unable to abuse the system by, for instance, a repetition of misconduct immediately after the warning has expired