What are the steps in a Disciplinary Process?

A disciplinary process should follow a formal protocol.

The steps to a disciplinary process provide you (as an employee) with the opportunity to explain your side of things.  The disciplinary process should include an investigation, a hearing, a decision, and an appeal.

What is a Disciplinary Process?

A disciplinary process is the process through which the employer will investigate and consider their response to alleged misconduct by an employee – what sanction or punishment to impose.  It’s your chance, as employee, to explain your side of things – to tell your version of events.  There should always be an opportunity to appeal the employer’s decision at the end of the disciplinary process.

Where can I find my employers Disciplinary Process?

The disciplinary process will usually be in the staff handbook, on the employer’s intranet, or available from HR or a senior manager.  All employers are obliged to publish their disciplinary process, so should have one available for you to review.

What things does a Disciplinary Process deal with?

A disciplinary process deals with misconduct and gross misconduct issues – where an employer has an issue with an employee’s conduct or behaviour at work.  This could be about anything from poor timekeeping, disruptive behaviour, harassment, bullying, to fraud, theft, damaging company property, and so on.

Sometimes performance issues are also included in a disciplinary process rather than in a separate performance management or performance improvement process.

What is a Disciplinary Investigation?

Employers should investigate any allegations of misconduct or gross misconduct before deciding whether a disciplinary process is appropriate.

The investigation should be carried out by an appropriate person (usually HR, a senior manager, or an external individual, depending on the size and resources of the employer and the allegations concerned).  Their job is to gather information, from the employee accused of misconduct and from any witnesses, to enable the employer to decide whether a disciplinary hearing is appropriate. Sometimes an investigation report will be produced, but in any event, everything should be recorded in writing.

What is a Disciplinary Hearing?

A disciplinary hearing is a formal meeting at which the allegations will be discussed with the employee.  It is the employee’s opportunity to put forward their version of events.

A disciplinary hearing will usually be run by a senior manager, or an external individual, depending on the size and resources of the employer and the allegations concerned.   They should take the employee through the allegations and discuss the employee’s side of the story.  Everything should be recorded in writing.

How should I be told about the outcome of my Disciplinary?

The employer should issue its decision in writing.

The disciplinary process will usually set out the timeframe in which the decision should be issued.  It is good practice for an employer to keep the employee up to date on the timeframe, especially if a decision may be delayed.

What are the possible outcomes of a Disciplinary Process?

If the allegations are not upheld, you would be told that you have been exonerated.  If the allegations were false, you may want to raise a grievance against the person who made them – best to get advice on your position and options before doing this.

Depending on the seriousness of the allegations, and any existing warnings you already had on your record, the potential sanctions or punishments range from a verbal warning (which still has to be recorded in writing), to a first written warning, final written warning, or dismissal, which could be with or without notice (i.e. a summary dismissal).  Warnings are usually said to be “active” for a given period say 6 or 12 months, depending on the seriousness of the misconduct and your previous disciplinary record.

If you already had a warning for similar misconduct, and that warning is still “active”, the employer can probably go to the next level of seriousness for the sanction for subsequent similar misconduct.  Whether this is fair will depend on the allegations and previous warnings given, as well as how long you’ve been working for your employer.

The decision of a disciplinary process should never be pre-judged.

Can I appeal my Disciplinary?

Yes, you should always be given the opportunity to appeal against any disciplinary decision.

The original decision need not be paused or postponed until after an appeal.  If, say, you were dismissed, but appealed successfully and the dismissal was replaced with a final warning, you’d be reinstated and back pay would need to be paid to cover the gap between dismissal and reinstatement.  In other words, if your appeal is successful you should be put back in the position you’d have been in had the original decision not been made, but there’s no need for the dismissal itself to be delayed pending an appeal process.

Does my employer have to follow a Disciplinary Process?

Employment Tribunals require employers to have followed a fair process before deciding to dismiss, as well as having a fair reason to dismiss (in this context, the reason would be misconduct). So for a dismissal to be fair, the employer must follow a fair disciplinary process.

However, in reality, the risks to an employer of failing to follow a disciplinary process are lower if you have less than 2 years’ employment and have no discrimination claims, or any other claims that don’t require at least 2 years’ service.  This is because you only gain the right not to be unfairly dismissed once you’ve got 2 years’ service.  Certain claims don’t need 2 years’ service (speak to us if you think you may have other claims such as discrimination or whistleblowing).

As such, we sometimes see employers taking a “commercial” decision to dismiss an employee with less than 2 years’ service without following a full disciplinary process.  You should seek legal advice if this happens to you, to check whether there may be any opportunity to improve the terms of your exit.

What if my employer sacks me without a Disciplinary Process?

Again, what you can do if this happens will depend on how long you’ve worked for your employer.  If you have less than 2 years’ service, your options are more limited and it will depend on whether you have any other claims such as discrimination or whistleblowing.

However, if you have more than 2 years’ service, you have the right not to be unfairly dismissed.  To dismiss fairly, an employer must have a potentially fair reason to dismiss (in this context, misconduct), and must have followed a fair procedure before making the decision to dismiss – i.e. the dismissal must be with the range of reasonable responses available to the employer.

If the employer hasn’t gone through a fair disciplinary process, the risk to them is that they haven’t properly investigated and found enough evidence to prove that dismissal is reasonable in the circumstances, which increases the risk of a successful claim for unfair dismissal.

You should firstly get legal advice on your position and options, with a view to appealing (even if not told you can do so).  You may have a claim, or else some leverage to negotiate a settlement deal to avoid the need to claim unfair dismissal.

Can I be sacked at my first Disciplinary Process?

Yes, it’s always open to an employer to sack their employees – the question is whether the dismissal is fair, not discriminatory, and so on.

Whether it is fair to dismiss for your first disciplinary process will depend on various factors including mainly the seriousness of the allegations against you.  If you’ve been accused of gross misconduct, and the allegations are proven, then it’s likely to be fair to dismiss you, whether you’ve been with the employer for 6 months or 6 years.  That said, a previous good disciplinary record would be a mitigating factor, though probably not sufficient in the face of proven gross misconduct.

How long should a Disciplinary Process take?

This will depend on the employer’s particular process, the nature and extent of the allegations, the number of witnesses, and the time of year.  It can also be driven by whether the employee is suspended or not pending the completion of the disciplinary process.

A straightforward disciplinary should take a few weeks, but some processes can take months or longer.  It should take no longer than is “reasonable” in the circumstances, which we realise is a pretty unclear answer.  The employer’s disciplinary process should give their target timeframe, but delays can be caused by witnesses being on holiday, or off sick, and so on.

The main thing is for the manager/HR running the process to communicate with you about the timeframe, delays, and explain why things are taking the time they are.  If this doesn’t happen, take advice on whether it may be worth raising a grievance about the way the disciplinary process is being run.

Can I be suspended pending a Disciplinary Process?

Yes, provided it’s reasonable to suspend you.

Employers should think carefully before suspending an employee pending a disciplinary.  It shouldn’t be a kneejerk reaction in every disciplinary case.

If you’ve been accused of gross misconduct, such as harassment, or fraud, then it’s more likely to be reasonable to suspend you to remove you from the workplace.  However, a lesser step may be reasonable, such as moving you to another team, or having you work from home, with access to particular parts of the system removed, or permissions altered.

Need more help with Disciplinary Process & Procedure?

If you need more help with the subjects covered here – especially if you have been suspended, or feel there is a nefarious reason for being subjected to a disciplinary (say you feel it’s discriminatory, or because you blew the whistle, or because you took maternity leave…) – then do reach out to our expert online employment law solicitors.  You can email us at employment@qlaw.co.uk or call 03300 020 863.

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