How Do I Handle a Disciplinary Matter?
When a concern arises about an employee's conduct, it can be tempting to move straight to disciplinary action.
Before doing so, take time to establish what has actually happened.
A fair disciplinary process isn't simply about holding a meeting and issuing an outcome. The employer should understand the allegation, establish the relevant facts, give the employee an opportunity to respond and consider the information fairly before deciding what action, if any, is appropriate.
The Acas Code of Practice on disciplinary and grievance procedures provides important principles employers should consider when handling disciplinary matters.
Step 1: Establish What the Concern Is
Start by clearly identifying the behaviour or incident causing concern.
Avoid turning an allegation into a conclusion before the facts have been established.
For example, rather than recording:
“The employee falsified company records.”
it may be more appropriate at the outset to record:
“It is alleged that the employee falsified company records.”
That distinction matters. At this stage, you are establishing what happened, not deciding the outcome.
You should also consider whether the issue is actually misconduct. Poor performance, capability, sickness absence and other workplace concerns can sometimes be mistaken for disciplinary issues.
If you aren't sure, ask Leo before choosing the process.
Step 2: Consider Whether Informal Action Could Resolve It
Not every conduct concern requires formal disciplinary action.
A relatively minor issue may sometimes be dealt with through an appropriate management conversation. This might involve explaining the concern, clarifying the standard expected and making clear what needs to change.
Whether an informal approach is appropriate will depend on the circumstances, including the seriousness of the issue and whether similar concerns have occurred previously.
More serious allegations, repeated misconduct or concerns that cannot reasonably be dealt with informally may require a formal process.
Step 3: Investigate Where Appropriate
Where there is a potential disciplinary issue, you should carry out whatever investigation is reasonable in the circumstances.
The purpose of the investigation is to establish the facts, not to prove the employee guilty.
Depending on the allegation, this could involve:
• reviewing emails, records or documents
• reviewing relevant policies or procedures
• speaking to witnesses
• obtaining other relevant evidence
• meeting with the employee to establish information
• considering conflicting accounts of what happened
The investigation should be proportionate. A straightforward issue may require relatively little investigation, while a serious or disputed allegation may require considerably more.
Keep an open mind throughout.
Step 4: Consider Whether Suspension Is Necessary
Suspension shouldn't be an automatic response to a serious allegation.
There may be circumstances where temporarily removing an employee from the workplace is reasonable, for example where their continued presence could create a genuine risk to the investigation, evidence, other employees, safeguarding or the business.
You should consider the particular circumstances and whether an alternative could manage the risk.
Depending on the situation, alternatives might include temporary changes to duties, location, reporting arrangements or working arrangements.
Suspension should not be used as a disciplinary punishment before the allegation has been determined.
If you are considering suspension and aren't sure whether it is appropriate, ask Leo to help you work through the circumstances first.
Step 5: Decide Whether There Is a Disciplinary Case to Answer
Once the appropriate investigation has been completed, consider the information gathered.
The question at this point isn't necessarily whether the employee is guilty.
It is whether there is a disciplinary case that should proceed to a formal hearing.
If there isn't sufficient basis for formal action, the disciplinary process may go no further.
If there is a case to answer, the employee should be informed of the allegation and invited to a disciplinary hearing.
Step 6: Invite the Employee to the Disciplinary Hearing
The employee should receive enough information to understand the allegation they are expected to answer.
The invitation should normally explain the nature of the alleged misconduct and the possible consequences if the allegation is upheld. Relevant evidence should be provided in sufficient time for the employee to prepare.
The employee should also be informed of their statutory right to be accompanied where that right applies.
A disciplinary hearing shouldn't be an ambush. The employee needs a reasonable opportunity to understand the case against them and prepare their response.
Step 7: Hold the Disciplinary Hearing
The hearing gives the employee an opportunity to respond to the allegation, explain their position and raise information they believe should be considered.
Listen to what they say.
Don't treat the meeting as a formality before communicating a decision that has already been made.
The employee may provide an explanation you weren't previously aware of. They may dispute evidence, identify another witness or raise information that requires further investigation.
If significant new information emerges, it may be appropriate to adjourn the hearing and investigate further before reaching a decision.
Step 8: Consider the Outcome
After the hearing, consider all the relevant information before deciding what should happen.
Depending on the circumstances, you may need to consider:
• whether the allegation has been established
• the employee's explanation
• the seriousness of the conduct
• relevant mitigation
• previous disciplinary history
• how similar situations have been handled
• the employee's role and responsibilities
• your disciplinary procedure
• whether the proposed outcome is proportionate
There is no requirement for every disciplinary case to result in a warning.
Equally, where misconduct is established, formal action may be appropriate.
The important point is that the outcome should follow consideration of the evidence rather than being decided in advance.
What Outcomes Could Be Appropriate?
Depending on the circumstances and your disciplinary procedure, possible outcomes could include no formal action, a first written warning, a final written warning or another appropriate sanction provided for by your procedure.
Dismissal may be appropriate in sufficiently serious circumstances or where further misconduct occurs while relevant warnings remain active.
Gross misconduct can potentially justify dismissal without notice. However, describing conduct as “gross misconduct” doesn't remove the requirement to establish what happened and follow an appropriate process before deciding to dismiss.
Step 9: Confirm the Decision
The employee should be informed of the outcome and the reasons for the decision.
Where a warning is issued, make clear what it relates to, what conduct is expected going forward, how long the warning will remain active where applicable and what could happen if further misconduct occurs.
Keep an appropriate record of the decision and the reasons behind it.
This can become particularly important if further issues arise later.
Step 10: Offer an Appeal
Employees should be given an opportunity to appeal a formal disciplinary outcome.
An appeal may challenge the decision, the procedure followed, the evidence considered or the proportionality of the outcome.
Where reasonably possible, the appeal should be handled impartially by someone who hasn't previously been involved and who has appropriate authority.
Small employers may not always have several management layers available. In that situation, consider what can reasonably be done to make the appeal as impartial as possible.
Remember the Acas Code
The Acas Code of Practice on disciplinary and grievance procedures sets out important principles employers should follow.
These include establishing the facts, informing the employee of the problem, holding an appropriate meeting, allowing the employee to be accompanied where applicable, deciding on appropriate action and providing an opportunity to appeal.
Where a relevant employment tribunal claim succeeds, compensation can be adjusted by up to 25% where there has been an unreasonable failure to comply with the Code.
Following a fair process therefore matters both for the employee and for protecting the employer's decision.
Common Mistakes to Avoid
Some of the most common disciplinary mistakes happen before the hearing itself. Watch out for:
• deciding the outcome before investigating
• treating an allegation as an established fact
• using disciplinary action for what is actually a performance or capability issue
• carrying out an inadequate investigation
• ignoring information that doesn't support the original allegation
• automatically suspending the employee
• failing to give the employee enough information to respond
• failing to consider mitigation
• choosing a disproportionate sanction
• failing to offer an appeal
• keeping inadequate records
A well written outcome letter cannot repair a process that was fundamentally unfair from the beginning.
How Can Leo Help With a Disciplinary Matter?
You don't need to know which disciplinary form, letter or process you need before asking Leo.
Start by telling Leo what happened.
Leo can help you work through the situation and consider questions such as whether the issue appears to be misconduct, whether important information is missing, whether an investigation is needed and what the next proportionate step should be.
If an investigation is appropriate, Leo can help you prepare for it. As the Matter develops, Leo can support meeting preparation, questions, communications, documentation and next steps.
Relevant Matter history can remain together within Leo HR, helping you maintain a clearer record of what happened, what information was considered and how the situation developed.
Most importantly, Leo is available 24/7, so you can ask for guidance before taking action.
Don't Start With the Disciplinary Letter
If you're dealing with a conduct concern, don't begin by asking:
“Which letter do I need?”
Begin with:
“What has happened, what do I know, and what do I need to establish before deciding what happens next?”
The process becomes much easier to manage once those questions are answered.
If you're currently dealing with a disciplinary concern, open Ask Leo and explain what's happened. You don't need to diagnose the issue or know which process to start. Leo can help you work through it from there.