When handled poorly, disciplinary action can damage employee relations and expose organisations to costly, time-consuming tribunal claims. This blog provides an overview to ensure fair disciplinary proceedings in the workplace, from investigation and hearings to outcomes and appeals. It also highlights common employer mistakes, legal risks and Acas best practice to help reduce the likelihood of unfair dismissal claims.
Investigation – Establish the Facts
A fair disciplinary process begins with an investigation to determine if there is a case to answer. This involves gathering evidence, reviewing documents, interviewing witnesses and taking statements. Investigations should be conducted promptly and impartially to objectively understand what happened before the allegation.
Rushing into a disciplinary hearing without sufficient evidence or forming conclusions too early is a common mistake employers make. A flawed investigation often undermines the entire process and can result in a costly tribunal claim.
Notification & Preparation
If the investigation indicates there is a case to answer, the employee should be notified in writing and provided with details of the alleged misconduct or performance concern, including copies of the evidence collected. The notification letter should advise them of the potential outcomes. The employee must be given adequate time to prepare for the disciplinary hearing and must be informed of their statutory right to be accompanied by a colleague or trade union representative.
Insufficient detail or late disclosure of evidence is a common employer pitfall and can leave the disciplinary process open to challenge.
The Hearing
The disciplinary hearing should be chaired by a manager who has not been involved in the investigation. At the hearing, the employer should present the evidence. The employee is then given the opportunity to respond to allegations, ask questions and present their own evidence.
Employees should be given every opportunity to present their full case. Predetermining the outcome or failing to consider mitigating factors can make a dismissal unfair, leaving the employer exposed to claims of unfair dismissal and increased tribunal awards.
Outcome Decision
After the hearing, the employer should carefully consider all the evidence before deciding on an appropriate outcome. This might range from no action to warnings or dismissal. Any sanctions given must be reasonable, consistent with previous cases (unless different treatment can be justified) and in line with the employer’s disciplinary procedures.
The outcome should be communicated to the employee in writing, with a full explanation of the reasons for the decision, including the duration of any warnings, improvements needed and timeframe for achieving improvements, consequences of further misconduct and the employee’s right of appeal.
Appeals
An employee has the right to appeal any disciplinary action taken by their employer and should do so in writing before the appeal deadline. The appeal should be scheduled without unreasonable delay and dealt with impartially by a manager not previously involved in the case. As with disciplinary hearings, employees have a statutory right to be accompanied at an appeal hearing. Employees should be notified out the outcome of the appeal hearing, in writing, as soon as possible.
Employers can sometimes underestimate the importance of the appeal stage. However, a properly handled appeal can correct earlier procedural mistakes and reduce the risk of an unfair dismissal claim.
Best Practice
Employers should ensure disciplinary procedures are fully up to date, compliant with the Acas Code of Practice on disciplinary and grievance procedures and that managers are trained to implement them effectively. Disciplinary policies and procedures should be clearly communicated through employee handbooks and contracts of employment and applied consistently across the organisation to ensure fairness and compliance.
While not legally binding, failure to follow the Acas Code of Practice not only increases the risk of an unfair dismissal claim but can also result in an increase in any compensatory award by up to 25%.
External Support
Well-managed disciplinary proceedings not only protect the employer from legal risks but also reinforce fairness and good employee relations. If you’re an employer who needs support implementing robust disciplinary procedures or are looking to appoint an external third-party for a more complex or high-risk case, EML are here to help. Contact us on 01942 727200 or email enquiries@employeemanagement.co.uk in confidence and without obligation, to find out how we can support you.