Handling Disciplinaries

Table of contents

Handling disciplinaries 2

Introduction 2

Disciplinary procedures and the employment

contract 2

Setting out disciplinary rules and procedures 3

Investigating disciplinary matters 4

Informal and formal disciplinary action 5

The statutory dismissal and disciplinary

procedures 6

Preparing for a disciplinary hearing 8

Holding a disciplinary hearing 8

Dealing with grievances raised during

disciplinary procedures 10

Types of disciplinary penalty 10

Appeals against disciplinary decisions 11

Helplines 13

Related guides on businesslink.gov.uk 13

Related web sites you might find useful 13

Handling disciplinaries

Created by Business Link on 16 September 2009 14:45You can personalise content from the Business Link websiteand download it in PDF format. This is a free service

Handling disciplinaries | Created by Business Link on 16 September 2009 14:45 Ã¨ Crown copyright 2007

Subjects covered in this guide

Introduction

Disciplinary procedures and the employmentcontract

Setting out disciplinary rules and procedures

Investigating disciplinary matters

Informal and formal disciplinary action

The statutory dismissal and disciplinaryprocedures

Preparing for a disciplinary hearing

Holding a disciplinary hearing

Dealing with grievances raised duringdisciplinary procedures

Types of disciplinary penalty

Appeals against disciplinary decisions

Helplines

Related guides on businesslink.gov.uk

Related web sites you might find useful

You can find this guide by navigating to:

Home > Employing people > Disciplinaryproblems, disputes and grievances >Handling disciplinaries

Introduction

Even in well-run businesses, it maysometimes be necessary to take disciplinaryaction against employees.

Therefore it's crucial that you have writtendisciplinary rules and procedures. Ifproblems do arise, these procedures shouldhelp dissuade employees from makingtribunal claims and ensure you deal withemployees fairly.

Your rules and procedures should:

• be set out in writing• follow the good-practice principles

set out in the Acas code of practiceon disciplinary and grievanceprocedures

Failure to meet this requirement may resultin extra compensation for the employee ifthey succeed in a tribunal claim.

This guide outlines what you need to put inyour procedures, how to handle disciplinaryissues in practice, and what disciplinarypenalties you can apply.

Disciplinary procedures and theemployment contract

You must by law tell each employee about:

• your disciplinary rules• your disciplinary/dismissal procedure• the name of the person to whom they

should appeal if they are unhappyabout a disciplinary or dismissaldecision



This information can be included in theemployee's written statement or the writtenstatement may refer the employee to adocument where they may read theinformation, eg in a staff handbook.

If you fail to provide this information to anemployee, they could be awarded two orfour weeks' pay - but only if they succeed inanother employment tribunal claim againstyou, eg unfair dismissal.

The contractual status of disciplinaryprocedures

Your dismissal/disciplinary procedure doesnot automatically form part of anemployment contract. Therefore, anemployee cannot claim breach of contract ifyou fail to follow it.

However, if you choose to make yourdisciplinary procedure contractual and youfail to follow it when taking disciplinaryaction, the employee could bring abreach-of-contract claim against you.

See our guide on the employmentcontract or use our interactive tool tocreate a written statement ofemployment.

Setting out disciplinary rules andprocedures

It's important that you tell your employeesabout your rules governing what behaviouris unacceptable in the workplace - and theconsequences if you find they havebreached them.

Setting out disciplinary rules

Your disciplinary rules should - at the veryleast - cover conduct issues relating to:

• absence• timekeeping• performance• health and safety• personal appearance• discrimination, bullying and

harassment• smoking, and alcohol and drugs

consumption• use of company facilities and

equipment for personal reasons inwork time, eg use of the internet, orparticular websites such asFacebook, instant messagingservices, web-based email, companyemail and telephones

This list is not exhaustive - you cannot covereverything that might lead to disciplinaryaction and there may be other rules youneed to include for your type of business.

Your rules should make it clear that if anemployee fails to meet the minimumstandards of conduct, you may begindisciplinary action against them.

See our guide on how to set upemployment policies for your business.

The rules should also give examples of thetype of behaviour you will treat as grossmisconduct - misconduct judged so seriousthat it's likely to lead to dismissal withoutnotice such as:

• bullying and harassment• drunkenness/drug abuse• fighting at work• fraud• gross negligence/insubordination



http://www.businesslink.gov.uk/bdotg/action/layer?topicId=1073971494&site=210&r.s=e&r.lc=en


http://www.businesslink.gov.uk/bdotg/action/stmtEmpLanding?topicId=1075225309&site=210&r.s=e&r.lc=en

http://www.businesslink.gov.uk/bdotg/action/stmtEmpLanding?topicId=1075225309&site=210&r.s=e&r.lc=en



• serious breaches of health andsafety

• theft• wilful damage to property• use of the internet or email to access

pornographic, obscene or offensivematerial

Make it clear that the list is not exhaustive.What counts as gross misconduct variesdepending on the type of business and therole of the employee.

Setting out disciplinary procedures

Your disciplinary procedure should accordwith the good-practice principles set out inthe Acas code of practice on disciplinaryand grievance procedures.

If you unreasonably fail to follow the codeduring a disciplinary procedure and theissue ends up at an employment tribunal,the tribunal could increase anycompensation it may award the employeeby up to 25 per cent.

Consulting employees on yourdisciplinary rules and procedure

You may want to consult with youremployees when putting together yourdisciplinary rules and procedure.

If you have any workplace representatives, itmay be more convenient if you carry out thisconsultation via them, ie via either tradeunion or, if there are none, electedemployee representatives.

Investigating disciplinary matters

When faced with a potential disciplinarymatter, carry out a full investigation before

taking any action. Consider:

• the alleged breach of discipline, thecircumstances and consequences ofthe breach

• the employee's job, experience,length of service and disciplinaryrecord

• the evidence of witnesses• any recent changes to the job• any previous incidents• whether the employee has received

appropriate counselling or training• any mitigating circumstances, eg

health or domestic problems, orprovocation

Once you have taken these factors intoaccount, review the evidence to determinewhether there is:

• a case to answer, or whether thecase is serious enough fordisciplinary measures

• an alternative to disciplinary action,eg an informal chat or redeployment

Suspending an employee while aninvestigation takes place

For certain serious offences you may needto suspend an employee while youinvestigate the matter. They should continueto receive their full pay.

You can only suspend an employee withoutpay if this is allowed in their contract ofemployment. However, try to avoid unpaidsuspension as it may appear to penalise anemployee before any disciplinary hearinghas taken place.

Criminal offences



Don't dismiss someone merely becausethey have been charged with or convicted ofa criminal offence, either at work or outsideit. You should investigate what action isjustified given the employee's role andconsider whether it affects their suitability tocarry on.

If it does, use your normal disciplinaryprocedure. If it doesn't, decide whether youcan keep their job open during any period ofabsence.

Base your decision on a reasonable belieffollowing an investigation into thecircumstances. However, if a criminalcharge has been made, don't put off takingappropriate, fair and reasonable disciplinaryaction merely because the outcome of theprosecution isn't yet known.

Informal and formal disciplinaryaction

If an employee's performance or conductdoes not meet your standards, you shouldtry to help that employee to improve. Havean informal discussion with the employee assoon as problems arise, explain the problemand agree actions with them. This kind ofinformal chat is not part of any formaldisciplinary procedure.

If the employee's poor conduct orperformance persists, you may have to takeformal disciplinary action.

Note that the employee has the right to beaccompanied at the formal disciplinarymeeting by a colleague or unionrepresentative.

Formal disciplinary action for

misconduct

In cases of misconduct, you should have ameeting with the employee to explain thedisciplinary procedure and your reasons forgoing ahead with it. After this, you couldeither drop the matter or issue:

• a verbal warning• a written warning• a second written warning, or• a final written warning, if necessary

After giving a warning, you should allow theemployee time to improve their behaviour.You should only issue a further warning orhold a formal disciplinary hearing if theprevious warning has no effect.

If you decide that you need to hold a formaldisciplinary hearing, this is the point at whichthe statutory dismissal and disciplinaryprocedures (SDDPs) begin to apply - butonly if you started the disciplinary actionbefore 6 April 2009.

If you started the disciplinary action on orafter 6 April 2009, you don't need to followthese procedures. However, your procedureshould accord with the good-practiceprinciples set out in the Acas code ofpractice on disciplinary and grievanceprocedures.

Find guidance on which rules apply tothe disciplinary action you're taking onthe Department for Business, Innovation& Skills (BIS) website - Opens in a newwindow.

In certain cases of very serious misconduct,it may be appropriate to bypass a stage inorder to deal with the matter quickly.



http://www.berr.gov.uk/whatwedo/employment/Resolving_disputes/disputes_after_6_april_2009/index.html





Formal disciplinary action for poorperformance

In cases of poor performance, the procedureis different. As a first step, meet with theemployee to agree an improvement plan.This should include a realistic timescale forimprovement, details of support to be givento the employee - eg training - and a date fora performance review. Make notes of whatyou agree and use it as an agenda for thereview.

If your employee's performance has notimproved after the review, you shouldconsider issuing a verbal warning. Carry outa further review - if performance still hasn'timproved, you should consider issuing awritten - or final written - warning.

If their performance continues to fail to meetthe required standards, you should considereither issuing a final written warning or, ifyou have done this already, holding a formaldisciplinary hearing. This is the point atwhich the SDDPs begin to apply - but only ifyou started the disciplinary action before 6April 2009.

If you started the disciplinary action on orafter 6 April 2009, you don't need to followthese procedures. However, your procedureshould accord with the good-practiceprinciples set out in the Acas code ofpractice on disciplinary and grievanceprocedures.

For more information on the SDDPs, see thepage in this guide on the statutorydismissal and disciplinary procedures.

The statutory dismissal anddisciplinary procedures

You must follow one of the statutorydismissal and disciplinary procedures(SDDPs) below if you started takingdisciplinary/dismissal action against anemployee before 6 April 2009.

There are standard and modified SDDPs. Inalmost all cases, you should follow thestandard one.

Transitional arrangements for applyingthe statutory procedures

You do not have to follow the appropriateSDDP when the 'trigger event' occurs on orafter 6 April 2009.

The trigger event could be either:

• the date you start the disciplinary ordismissal procedure - usually thedate you send a letter to theemployee informing them that youare contemplating dismissing them ortaking disciplinary action againstthem

• the date of the disciplinaryaction/dismissal itself, when no suchletter has been sent

However, you still have to follow theappropriate SDDP where the trigger eventoccurred before 6 April 2009. This is thecase even if - after that date - you:

• held or will hold the disciplinaryhearing

• held or will hold an appeal hearing (ifrequested)

In these circumstances, you cannot agreewith an employee not to follow the SDDPs.



http://www.businesslink.gov.uk/bdotg/action/detail?type=RESOURCES&itemId=1081727680&site=210&r.s=e&r.lc=en


Find out more about transitionalarrangements for the SDDPs on theDepartment for Business, Innovation &Skills (BIS) website - Opens in a newwindow.

The standard SDDP

The standard SDDP has three stages:

1. Inform the employee in writing whyyou are contemplating dismissing ortaking some other disciplinary actionagainst them and invite them to ameeting. Make sure you give themenough time to prepare. Provide theemployee with copies of anyevidence that you may use at thatmeeting.

2. Hold the meeting with the employee.After the meeting, inform them ofyour decision and, if you havedecided to dismiss them or apply adisciplinary penalty, notify them oftheir right to appeal. If newinformation arises during the meetingthat may affect your decision, endthe meeting and investigate thematter further. Rearrange themeeting if necessary.

3. If the employee wishes to appeal,invite them to a further meeting. Seethe page in this guide on appealsagainst disciplinary decisions.

The employee has the right to beaccompanied at both meetings by acolleague or union representative.

The modified SDDP

The modified SDDP only applies in very rarecases of gross misconduct, ie where anemployee's misconduct is so bad that youdismiss them immediately, eg fighting or

drunkenness.

The procedure has two stages:

1. Written statement - give theemployee a written statement settingout the conduct that has resulted intheir dismissal and informing them oftheir right to appeal.

2. Appeal meeting - if the employeewishes to appeal, they must informyou. Hold an appeal meeting andthen inform the employee of yourdecision.

The employee has the right to beaccompanied at the meeting by a colleagueor union representative.

You have to follow the 'old' Acas code ofpractice on disciplinary and grievanceprocedures throughout the entire disciplinaryprocess, as the code is taken into accountby tribunals when dealing with unfairdismissal claims.

Download the old code of practice ondisciplinary and grievance proceduresfrom the Acas website (PDF, 327K) -Opens in a new window.

In addition, if you fail to follow theappropriate SDDP and the employee'stribunal claim is successful, theircompensation can be increased by up to 50per cent.

When the SDDPs don't apply

The law sets out some circumstances whereyou don't have to follow the appropriateSDDP. These are where:










http://www.acas.org.uk/media/pdf/l/p/CP01_1.pdf




• It's not possible for employment tocontinue, eg where the workplaceburns down and no suitablealternative premises are available.

• You dismiss an employee for takingindustrial action (although in the caseof lawful, officially-organised action,special arrangements apply).

• Owing to factors beyond your control,it is effectively impossible for you tocomplete or even start theprocedure, eg if the employee leavesthe country or becomes seriously ill.

• You dismissed the employeebecause it would be illegal tocontinue to employ them, eg whereyou employed them as a driver butthey became disqualified from drivingand there was no suitable alternativework for them to do.

• The issue concerned is a collectiveone, eg where you are under a dutyto consult workplace representativesin a collective redundancy situationor where you dismiss a group ofemployees but immediately offerthem re-employment on differentterms and conditions.

• When the employee's behaviour isso violent or unreasonable that youcannot be expected to go through theprocedure with them. This exemptionis to cover cases where you havereal reason to fear violence,harassment or vandalism, not justwhere the employee is being difficultor unpleasant.

Preparing for a disciplinary hearing

Before you hold a disciplinary hearing:

• Familiarise yourself with yourdisciplinary procedure so you apply itcorrectly.

• Carry out a full investigation. Seethe page in this guide oninvestigating disciplinary matters.

• Make sure you have all relevantfacts and documents (includingdetails of any past disciplinary actiontaken against the employee)available for the hearing.

• Inform any manager andwitnesses who may need to attend.

• Obtain witness statements fromany witnesses unable to attend thehearing.

• Arrange for someone to take notes.• Arrange for another manager to

attend the hearing to act as a witnessto the proper conduct of the hearing.

• Arrange a suitable time, date andvenue for the hearing.

You should also ensure the employee has:

• plenty of time so they can preparetheir case and consult anyrepresentatives

• details of the complaint, theprocedure to be followed and theneed for them to attend a disciplinaryhearing

• their right to be accompanied at thehearing by a colleague or trade unionofficial

• copies of any documents you intendto rely on as evidence against theemployee

If the employee is a trade union official, it isadvisable to discuss the case with a full-timetrade union officer or senior trade unionrepresentative.

Holding a disciplinary hearing

For any disciplinary hearing:




• ensure that it's private and won't beinterrupted

• introduce everyone and explain whythey are present

• explain the reason for the hearingand how it will be conducted

• describe the exact nature of thecomplaint and go through theevidence

• allow the employee to see anydocuments they haven't already seen

• give the employee a chance to statetheir case and to respond to anyallegations made

• ensure that you get all the factsrelating to the complaint and takenote of any special circumstances

• summarise what's been discussedand highlight any issues that need tobe investigated further

If it becomes clear during the hearing thatthe employee has a satisfactoryexplanation for their conduct/performance,stop the hearing and take no further action.Also stop the meeting if the employee is toodistressed to continue or furtherinvestigation seems necessary.

If an employee raises a separate grievanceduring a disciplinary hearing, you may haveto call a halt to the hearing and deal with thegrievance first. See the page in this guide ondealing with grievances raised duringdisciplinary procedures.

Informing the employee of your decision

Following a disciplinary hearing, you shouldinform the employee as soon as possible inwriting of:

• the disciplinary penalty you plan toimpose, if any - see the page in thisguide on types of disciplinary

penalty• the reasoning behind the decision• the specific improvement that is

required - if any• how long any warning is going to

remain in force• what will happen if they continue to

perform or behave poorly• the right of appeal and how this

should be carried out - see the pagein this guide on appeals againstdisciplinary decisions

Dealing with delays

If the employee is genuinely unable toattend the disciplinary hearing, eg becausethey are ill, offer them an alternative at areasonable date and time.

If the employee's companion cannot makethe re-arranged hearing, the employee mustpropose another date and time no morethan five days after your proposed date.

If the employee fails to attend therearranged hearing, this stage of theprocedure is complete and you can makeyour decision there and then. Don't forgetthat you will still have to tell them in writingof the decision and that they have the rightto appeal.

Note that if you cannot make the hearing,you must offer the employee an reasonablealternative date and time.

It is important that you notify the employeeas soon as possible of any delays. If you failto do so, a tribunal could increase anycompensation awarded against you.

Dealing with long-term absence

An employee may well become anxious and








stressed in the run-up to a disciplinaryhearing. This can lead in some cases tothem being absent for weeks or evenmonths due to stress-related illness.

If this situation arises, you can ask theemployee's GP and/or an occupationalhealth specialist for a medical report. (Youmust gain the employee's agreement beforedoing so.)

You should ask for the report to statewhether or not the employee is fit enough toattend a hearing in the near future:

• If they are deemed fit enough, youshould arrange the hearing with theemployee in the normal way.

• If not, you might not be able tocomplete the disciplinary procedurewithout unreasonable delay. In thissituation, you can treat the procedureas having been completed and makea decision in the employee'sabsence. However, you should stilltell the employee that they cansupply written material for theirdefence if they wish.

Dealing with grievances raisedduring disciplinary procedures

At some point during the disciplinaryprocess, the employee concerned may raisea grievance. For example, they may claimthat:

• the disciplinary action involvesunlawful discrimination

• the real reason for you taking thedisciplinary action is not the one youclaim it is

If this happens, you should suggest that,after the hearing, they raise a formalgrievance in writing.

However, if you begin to doubt why the thedisciplinary action is being taken, you shouldend the meeting. You should then makefurther investigations to confirm that thereasons for taking the action are sound andjustifiable.

If the employee formally raises a grievanceafter a disciplinary hearing but before anyappeal hearing, you can discuss this at theappeal stage. The appeal hearing will alsobecome a grievance hearing and the twoprocedures will overlap.

If the employee formally raises a grievanceduring or after any appeal hearing, you willhave to complete your grievance procedurein full.

For more information about grievances, seeour guide on handling grievances.

Types of disciplinary penalty

After a disciplinary hearing, you could:

• drop the matter• issue another written - or a final

written - warning• provide counselling or training to help

resolve the matter• apply a disciplinary penalty, eg

demotion or dismissal

Take account of factors such as theemployee's previous record and any specialcircumstances in making your decision. Fora list of possible factors to consider see thepage in this guide on investigating




disciplinary matters.

Disciplinary penalties other thandismissal

If you feel that the employee's misconductor poor performance was not bad enough todismiss them, provided their contract allows,you could:

• transfer them to another job• demote them• fine them, eg by non-payment of

bonuses• suspend them without pay - this is

not very common these days andmeans that you lose the employee'sservices for a time

To avoid potential claims to an employmenttribunal, you should expressly provide forany of these sanctions in the contract ofemployment. See our guide on theemployment contract.

Dismissal

The most severe disciplinary penalty isdismissal. Normally you should only dismissif - during the entire disciplinary process -you have:

• Issued warnings.• Made it clear that if they failed to

improve their conduct orperformance they could bedismissed.

• Followed - at the very least - thestandard statutory dismissal anddisciplinary procedure (SDDP).Failure to do so will make anydismissal automatically unfair. Note,however, that this only applies if thedisciplinary action began before 6April 2009.

For gross misconduct you may be able todismiss immediately without giving notice orpay in lieu of notice. However, summarydismissal is generally not recommended.

Ideally, for any misconduct - gross orotherwise - you should:

• investigate the incident fully• suspend the employee on full pay

during the investigation wherenecessary

• follow the standard SDDP ifnecessary - although this onlyapplies if the disciplinary actionbegan before 6 April 2009

For more on investigations, see the page inthis guide on investigating disciplinarymatters.

For more information on the SDDPs, see thepage in this guide on the statutorydismissal and disciplinary procedures.

Appeals against disciplinarydecisions

An employee has the right to appeal againstyour decision following the disciplinaryhearing. You must notify them of this rightwhen you write to give them the decision.Give them a deadline to notify you of theirintention to appeal, eg within ten workingdays.

If the employee does appeal, you must try tohold the appeal hearing withoutunnecessary delay.

Preparing for an appeal hearing

Before you hold an appeal hearing:










• Familiarise yourself with the appealstage of your disciplinary procedureto ensure that you are applying itcorrectly.

• Make sure you have all relevant factsand documents, especially if youhave come across new evidencesince the first hearing.

• Arrange a suitable time, date andvenue for the hearing.

• Inform the worker in plenty of time sothey can prepare their case andconsult any representatives. Remindthem that they have the right to beaccompanied at the hearing by acolleague or trade union official.

• Inform any manager and witnesseswho may need to attend.

• Obtain witness statements from anywitnesses unable to attend thehearing.

• Arrange for someone to take notes.• If possible, arrange for another

manager to attend the hearing to actas a witness to the proper conduct ofthe hearing. If this is not possible, egwhere there is only one manager andone employee, the person holdingthe meeting must be impartial.

Holding an appeal hearing

The principles for holding an appeal hearingare generally the same as for the initialdisciplinary hearing - see the page in thisguide on holding a disciplinary hearing.

However, at the appeal hearing, you shouldalso consider:

• the reasoning behind the appeal• any new evidence since the earlier

decision

Ideally the person hearing the appeal

shouldn't be the same person that heard theinitial hearing, eg a more senior managerwho has not been involved with thedisciplinary process at all. They will be ableto hear any appeal without having anyassumptions.

However, where the person hearing theappeal is the same person who heard thefirst hearing, they should act impartially andmake sure they review the original decisioncarefully.

You should write to the employee with yourdecision and the reason for it as soon aspossible after the hearing. Make it clear, ifthis is the case, that the decision is final.

Appeals to external bodies

Some industries, eg the constructionindustry, have procedures for dealing withappeals agreed between employer bodiesand trade unions. This should be statedduring the disciplinary procedure.

Dealing with delays

If the employee is genuinely unable toattend the appeal hearing, eg because theyare ill, you must offer them an alternative ata reasonable date and time.

If the employee's companion cannot makethe rearranged hearing, the employee mustpropose another date and time no morethan five days after your proposed date.

If the employee fails to attend therearranged hearing, this stage of theprocedure is complete and you can makeyour decision there and then. Don't forgetthat you will still have to tell them in writingof the decision.




Note that if you cannot make the hearing,you must offer the employee a reasonablealternative date and time.

It is important that you notify the employeeas soon as possible of any delays to theappeal process. If you fail to do so, atribunal could increase any compensationawarded against you.

Helplines

Acas Helpline

08457 47 47 47

Related guides onbusinesslink.gov.uk

Use our interactive tool to create awritten statement of employment | Useour interactive tool to help you follow thecorrect disciplinary procedure | Improvethe performance of your staff | Theemployment contract | Dismissal |Handling employment tribunal claims |Keep the right staff records | Set upemployment policies for your business |Bullying and harassment | Workeffectively with trade unions | Workingwith employee representatives | Makingan employee redundant | Industrialdisputes | Comply with data protectionlegislation | Manage absence andsickness | How to deal with stress |Handling grievances | Preventdiscrimination and value diversity | Issuethe correct periods of notice |

Related web sites you might finduseful

Dispute resolution guidance on the Acaswebsite - Opens in a new window

Handling discipline and grievancetraining courses on the Acas website -Opens in a new window

Which rules apply to the disciplinaryaction you're taking on the BIS website -Opens in a new window

Right to be accompanied at disciplinaryhearings guidance on the Acas website -Opens in a new window

Sample disciplinary procedures on theAcas website - Opens in a new window

Model letters and notices of disciplinarymatters on the Acas website - Opens in anew window

Download disciplinary and grievanceprocedures code of practice from theAcas website (PDF, 327K) - Opens in anew window



http://www.businesslink.gov.uk/bdotg/action/stmtEmpLanding?topicId=1075225309&site=210&r.lc=en&r.li=1082578740

http://www.businesslink.gov.uk/bdotg/action/stmtEmpLanding?topicId=1075225309&site=210&r.lc=en&r.li=1082578740

http://www.businesslink.gov.uk/bdotg/action/layer?topicId=1075122891&site=210&r.lc=en&r.li=1082578741































http://www.acas.org.uk/index.aspx?articleid=2126


http://www.acas.org.uk/elearning/registration/registration_add_s1.asp














http://www.acas.org.uk/media/pdf/r/5/discgrievprod_1.pdf




Handling Disciplinaries

Business

Transcript of Handling Disciplinaries