Disciplinary Proceedings

The experts in Employment Law claims

Sadly, sometimes employees misbehave, and it might be necessary to take action against them for their behaviour. Employers must have a disciplinary policy in place, as this is a legal requirement. However, simply following your policy, may not be enough to stop the exposure of your business to the risk of an Employment Tribunal claim.

Your overall procedure needs to be fair and your ultimate decision should be justifiable.

Should I take formal or informal action?

You should consider whether formal action is required in the face of misconduct. The foreword to the ACAS Code encourages informal resolution, where appropriate, and emphasises that a ‘quiet word’ may be all that is required to resolve an issue.

Informal action tends to be the most appropriate when an employee has committed an act of misconduct for the first time in relation to a matter that is not (initially at least) particularly serious, such as an isolated example of lateness.

Alerting the employee to the fact their lateness has been noticed and is unacceptable may be a better way of dealing with this type of issue as opposed to launching straight into an investigation and formal disciplinary proceedings. It will certainly be shorter and less time consuming for a first time, small offence to deal with it informally rather than undertaking a full disciplinary process.

What does the formal disciplinary process involve?

If the matter is more serious, then a formal process should be instigated. Planning the full process as much as possible at the start of the matter is ideal and allows for additional lines of investigations be considered. Broadly speaking a thorough investigation will involve:

Identifying the allegations against the employee
Investigating the alleged misconduct
Considering the appropriateness, or not, of suspension of the employee
Conducting a disciplinary hearing, if the investigation identifies there could be a case to answer
Communicating that disciplinary hearing outcome to the employee
Providing the employee with a right of appeal

Frequently Asked Questions

Does it matter if the employee has had previous offences?

The company disciplinary policy will usually contain the applicable sanctions available under the policy for misconduct. These usually include as a minimum a first written warning, final written warning and dismissal (with or without notice).

Most policies have a period of time (usually between 6 -12 months) that a sanction will stay on the employee’s disciplinary record for, after which they will ‘fall away’ and be removed from the employee’s records.

Should I suspend the employee who has been allegedly misbehaving?

Suspension is a neutral act but should only be used in cases where it is appropriate. The major factors that would suggest suspension would be appropriate are as follows:

the seriousness of the alleged misconduct and whether the employee’s behaviour could justify summary dismissal;
the risk of further problems if the employee is allowed to remain in the workplace; and
the possibility of interference with the investigation if the employee is not suspended (tampering with evidence).

Do employees have the right to be accompanied at a disciplinary hearing?

Yes. Employees have the right to be accompanied by a colleague or trade union representative at a disciplinary or appeal hearing.

If the employee is disabled, then you should consider whether allowing them to have a companion outside of the two above categories is a reasonable adjustment.

What if the employee raises a grievance?

Raising a grievance is a common tactic used by an employee, usually aimed to try and delay any potential disciplinary proceedings against them. It is a common misconception that a grievance will delay a disciplinary procedure however, it does not.

A disciplinary and a grievance are two separate issues and should be dealt with separately, but concurrently so as to not delay the disciplinary and to allow the disciplinary to continue. There would only be very limited situations where the grievance and its substance impact upon the disciplinary procedure but this is rare.

If you would like to speak to our specialist employment lawyers, please call 0113 200 9948 for a no-charge initial consultation.

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Fiona Almazedi- Solicitor and Head of Employment

Fiona Almazedi has been with Oakwood Solicitors for the last 10 years working as a consultant and taking up the position of Head of Employment on the 3rd January 2024. Fiona has over 20 years of experience in Employment Law both contentious and non-contentious matters. Qualifying as a solicitor in 2006, Fiona has for many years successfully represented Claimants nationally and locally and covers all areas of Employment Law, including complex Whistleblowing and Discrimination, Unfair Dismissal and TUPE. Fiona has extensive experience of all aspects of the Employment Tribunal process and regularly represents Claimants and Respondents at Final and Preliminary hearings and has secured many high value awards for her Clients over the years.

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Need help or representation with employee proceedings?

The experts in Employment Law claims

Should I take formal or informal action?

What does the formal disciplinary process involve?

Fiona Almazedi- Solicitor and Head of Employment

Disciplinary
Proceedings

Need help or representation
with employee proceedings?