What does a good disciplinary process look like?

As a minimum, employers should follow the principles set out in the Acas Code of Practice for Disciplinary and Grievance Procedures.

Putting in place a disciplinary policy which follows the principles of the Code will help to protect you to carry out a fair process and will provide protection in the event of a claim.

The Code sets out the key steps to handling disciplinary matters:

1. Investigate and establish the facts of the case. An investigation might, but doesn’t have to, involve meeting with the employee under investigation. Suspension won’t always be appropriate but where it is necessary it should be as brief as possible and kept under review.

2. Write to the employee setting out the allegations against them and giving them enough information to enable them to prepare to answer the case. Provide copies of any evidence you will rely on. Confirm the details of the meeting which, where possible, should be handled by someone not involved in the investigation stage.

3. The employer needs to arrange a meeting with the employee to discuss the grievance, this needs to be in a reasonable amount of time

4. The employee has the right to be accompanied to the disciplinary hearing by a colleague or trade union representative

5. Following the hearing, the employer must decide on what action to take and communicate its decision to the employee in writing. Usually, less serious examples of misconduct will follow a pattern of warnings before moving to dismissal:

• First written warning
• Final written warning
• Dismissal

6. Warnings should set out how long they will remain live for and what remedial action is expected from the employee. If the conduct is sufficiently serious on its own, e.g. gross misconduct, then you might decide to move straight to dismissal, even for a first offence.

7. The employer must give the employee an opportunity to appeal against the decision. The appeal should be heard ideally by a manager not previously involved in either the investigation or original decision.

Putting a disciplinary policy in place

Although this sets out the basics of a disciplinary procedure, employers should make sure they have a robust policy in place which is tailored to their organisation. For example, in certain industries/roles, such as where money is handled, honesty might be particularly key so the procedure should make clear that acts of fraud, dishonesty or theft may be treated as gross misconduct.

What are the consequences if we don’t follow a disciplinary process?

It is not the case that if an employer fails to follow a disciplinary procedure, the employee will have an automatic claim. However, where an employee has at least 2 years’ service they are entitled to bring an unfair dismissal claim.

A fair dismissal involves two key elements:

• Having a potentially fair reason to dismiss (there are five to choose from: conduct, performance/capability, redundancy, illegality and SOSR – Some Other Substantial Reason)
• A fair process having been followed prior to dismissal

If a former employee brings a claim, for example relating to their dismissal for conduct reasons, and the employer hasn’t followed a fair disciplinary process, this is likely to be fatal for the employer and result in the Tribunal finding the employee was unfairly dismissed.

In addition, failing to follow the Acas Code can result in up to a 25% uplift in any compensation the employee is awarded.

Does that mean we don’t need to follow a process for employees with less than 2 years’ service?

Because employees with under 2 years’ service can’t claim unfair dismissal, in many cases an employer won’t need to carry out a process, or have a fair reason, in order to dismiss them.

However, there may be good reasons in some circumstances why it would still be best to carry out a process, for example the employee:

• is very close to their 2 year anniversary
• has a protected characteristic under the Equality Act
• has previously complained about something in the workplace, for example, alleged breach of health and safety obligations