If an employer has concerns about some aspect of an employee’s conduct or performance, it is essential they follow a full and fair procedure for disciplinary action when dealing with it.

ACAS Code of Conduct relating to disciplinary action

There is an ACAS (the Advisory, Conciliation, and Arbitration Service) Code of Practice relating to disciplinary and grievance procedures. The document outlines the minimum standards and procedures employers must follow when dealing with a disciplinary matter.

Failure to follow the ACAS Code of Practice will be considered if the matter ends up at tribunal. An otherwise fair dismissal may be found unfair if the employer failed to follow the code.

Employer disciplinary code and contracts of employment

Employers should make sure they have set out their disciplinary procedure in writing, normally in the employee handbook or contract of employment.

This should include details of what may lead to disciplinary action and what the consequences are if an employee’s behaviour or performance falls short of expectations.

The employer’s handbook and the employee’s contract of employment should always be consulted prior to taking any disciplinary action.

Preliminary investigation of the facts

When a disciplinary issue arises, the employer should investigate as soon as possible.

This stage of the process is about gathering evidence. It may also require an investigatory meeting. This is different to a disciplinary hearing but may require the employee concerned to attend.

The employee does not have a legal right to be accompanied at an investigatory meeting unless provided for in their contract of employment. Ideally, the meeting should be conducted by someone other than the person who conducts the disciplinary hearings.

In serious cases, where suspension is considered appropriate following investigation, the suspension should be kept as short as possible. The disciplinary hearing should be held as soon as is reasonable.

Notifying the employee

If, following investigation, the employer decides to proceed with disciplinary action, they should notify the employee in writing. They must set out the allegation or concern and the possible outcome and consequences of the disciplinary proceedings.

The employee should also be told the details of when and where the hearing will be held. They should also be made aware that they are allowed to be accompanied at the hearing.

The disciplinary hearing

The disciplinary hearing should be held as soon as possible. The employee should be notified whether other witnesses will be present. The hearing should be arranged at such a time and place as is reasonable for the employee to attend.

At the hearing, the allegation or concern should be clearly explained. The employee must be given an opportunity to state their case, or version of events, and to challenge the evidence against them.

Employees have the right to be accompanied to the hearing by:

• a colleague
• a trade union representative
• a trade union official.

Alternatively, if the above people aren’t available, an employee may be able to bring a family member or a Citizens Advice worker, if the employer agrees.

Disciplinary action

Following the hearing, it is important the employer notifies the employee of the decision and outcome.

The employer may decide to:

• take no further action
• issue a written warning
• issue a final warning
• dismiss the employee.

The employer should, if action is taken, notify the employee of their right to appeal the decision.

The disciplinary appeal

If an employee decides to appeal the decision of a disciplinary hearing, they should notify their employer in writing, setting out the reason for the appeal. The employer should then arrange an appeal hearing as soon as is reasonable.

Ideally, someone else should be involved in conducting the appeal rather than the person who dealt with the original hearing. It must also be dealt with impartially.

As with the hearing, the employee is legally entitled to be accompanied by someone. Following the appeal, the employee should be notified in writing as soon as possible about the outcome and decision.

Bringing a claim in the employment tribunal

If the employee still feels aggrieved or believes a fair disciplinary procedure was not followed, they may decide to issue a claim against their employer in the employment tribunal.

It is now mandatory for nearly all employment cases to be referred to ACAS before they go any further. ACAS will then try to help the parties to reach a settlement or agreement about the outcome.

If a settlement or agreement still isn’t achieved, the matter will continue to the tribunal.

Finding professional advice relating to disciplinary action

A disciplinary action at work can be an extended, complex, and emotionally wearing series of events. Obtaining professional help in dealing with it is often a prudent course of action.

If you feel your case has not been handled fairly, we can help. Our team of experienced employment law solicitors can share their expertise in handling disciplinary issues, dealing with dismissal cases and navigating tribunal proceedings.

For an initial discussion, get in touch today.