Conducting a Disciplinary
If you have a problem with an employee, you may wish to consider disciplinary action.
The information on this page is intended as a general guidance for UK employers, and may not be appropriate for all situations. You should always consider seeking professional advice before acting.
Please also see the footnote at the bottom of this page.
All UK employers should have a written disciplinary policy and procedures. (Small businesses are not exempt from this requirement, therefore even those organisations with just one employee are required to comply.)
If you have a disciplinary policy, it is important that it is followed. If you don't have a disciplinary policy, you should follow the Code of Practice 2009.
(The disadvantage of relying on the nwe procedures is that they are rather basic and are not specific to your organisation. Nor do they give any guidance on how the requirements should be met.)
Identify the problem and a strategy
Before acting, it is important to consider the nature of the problem and how it should be dealt with. You should consider whether the problem is one of capability (i.e. is the employee incapable of adequately performing a task or tasks required of them?), conduct (i.e. employee behaviour) or gross misconduct (i.e. a very serious incident).
It is useful to have two alternatives to consider. For less serious matters, an informal disciplinary procedure may be most appropriate. This gives a structured approach the discussing the matter with the employee and following it up with specific recommendations.
More serious matters (or issues previously dealt with informally) may best be dealt with using a formal disciplinary procedure.
Informal disciplinary procedures
Before discussing matters with an employee, you should determine what you are going to say to them. You should consider the basis for your discussions - this might include making notes before meeting to backup your argument. For example, if you wish to discuss their attendance record, it might be helpful to note the times they start and finish work, or obtain a record of their sickness/absence.
We recommend inviting the employee to an informal (yet structured) meeting (see links). This makes it clear to the employee that you consider the matter important and that you wish to see an improvement in the situation.
During the meeting, keep notes that are detailed enough to give a good summary of the key points (see links below for guidance on taking notes in informal disciplinary meetings).
After the meeting, it is useful to provide a written summary to the employee outlining what was discussed and the actions agreed (see links).
Keeping written notes and summarising these to the employee highlights your desire to resolve the matter and can help clarify to the employee what you wish to see in the future. A paper trail is also useful if the matter is not satisfactorily resolved and reoccurs in the future. It will also help the employer should the matter eventually lead to an employment tribunal.
Useful links
Formal disciplinary procedures
When considering formal disciplinary action, it is important to conduct an investigation. This should include a preliminary investigation meeting with the employee to ensure they are clearly aware of the matter and that it may lead to disciplinary action and sanctions.
Although employees are not legally entitled to be accompanied at investigatory meetings, it is worth considering giving an employee the opportunity to have a companion at the meeting. (It may be that your disciplinary policy also specifies restrictions on who may accompany the employee.)
In cases that are potentially serious, it may be appropriate to formally suspend an employee from work (see links).
Once the investigation stage is complete, you should invite the employee (in writing) to attend a formal disciplinary hearing (see links).
When inviting the employee to a formal disciplinary meeting ("formal disciplinary hearing"), you should ensure the employee is given enough notice to arrange a companion and adequately prepare for the hearing. The employee should also be given copies of any investigation notes before the hearing.
We recommend that the disciplinary hearing is chaired by someone other than the person who conducted the investigation (though we realise this may not always be practical in very small organisations).
During the hearing, the allegations should be detailed, the evidence presented and the employee asked for their responses and explanations. It may be that the employee also wishes to raise mitigating circumstances.
The employee should be given the opportunity to ask questions and to present any evidence they have.
Notes should be taken during the hearing, with a copy provided to the employee shortly afterwards.
Before any disciplinary decision is made, the hearing should be adjourned to allow the chairperson to consider all the facts. The chairperson may then decide what (if any) formal disciplinary sanction will be applied - thise could be a written warning (a first or a final written warning), dismissal (with notice or in the case of gross misconduct without notice), or an action short of dismissal (e.g. a demotion, relocation to another department etc.).
Written summaries of the hearing and disciplinary actions taken should be given to the employee after the formal disciplinary hearing.
If the disciplinary matter is not adequately resolved (for example, a similar matter occurs subsequently), the disciplinary process can be repeated (potentially resulting in a more serious disciplinary sanction).
Useful links
- Invitation to a Formal Disciplinary Hearing
- Formal Written Warning Letter
- Suspension Letter
- Dismissal After Warnings
- Dismissal for Gross Misconduct
Appeals
An employee should always be given the opportunity to appeal against formal disciplinary sanctions. (Not doing so is likely to be viewed unfavourably by an employment tribunal, as employees have a legal right of appeal.)
If an employee wishes to appeal, they should appeal in writing within an appropriate timescale. (An appropriate timescale could be specified in your disciplinary policy.) You should write back to them, inviting them to attend a disciplinary appeal meeting ("disciplinary appeal hearing").
An appeal hearing should not be a repeat the original disciplinary hearing, but rather should consider the grounds on which the employee believes the original disciplinary hearing and discipline decision was unfair.
Ideally, the disciplinary appeal hearing should be chaired by a different person to the chair of the original disciplinary hearing (though we recognise this can be difficult in smaller organisations). As with disciplinary meetings, appropriate notes should be recorded.
A disciplinary appeal hearing may decide to uphold the original disciplinary decision, may decide no disciplinary penalty should be issued or that a lessor disciplinary penalty would be more appropriate.
Whatever the decision of the disciplinary appeal hearing, the judgement should be conveyed in writing to the employee (which shall be final).
Useful links
- Invitation to a Discipline Appeal Hearing
- Disciplinary Appeal Outcome Letter (Decision Upheld)
- Disciplinary Appeal Outcome Letter (Lesser Penalty)
- Disciplinary Appeal Outcome Letter (No Action)
- Disciplinary Appeal Outcome Letter (Dismissal Reinstatement)
Footnote
If you require further explanation, guidance or advice specific to your disciplinary problems, please contact us. We have a range of disciplinary letters and forms that may be helpful. We can also provide consultancy if you need more personal assistance.
The information on this website is primarily aimed at UK based organisations, though may be more generally applicable. The information is believed to be correct at time of writing but may be subject to change as legislation is updated and precedents set. THIS INFORMATION MAY NOT NECESSARILY BE APPROPRIATE FOR YOUR ORGANISATION. If in doubt, please contact us or your legal advisers.
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