Disciplinary & Dismissal Procedure

Business & Employment Law

The ACAS Code of Practice is a practical guide for employers, employees and their representatives to use when dealing with disciplinary situations in the workplace. All employers’ disciplinary procedures should be consistent with the terms of the Code.

Employment tribunals will take into account whether the Code has been complied with in respect of any unfair dismissal claim. Although a failure to follow the Code will not automatically mean a dismissal is unfair, an unreasonable failure to follow the procedure may result in a tribunal finding a dismissal unfair. In such cases, the tribunal has the authority to adjust any compensatory award granted to an employee by up to 25%. Conversely, if a tribunal finds an employee has unreasonably failed to follow the guidance set out in the Code, they may reduce any award to the employee by the same amount. For this reason, it is recommended that employers and employees follow the Code as a matter of good practice.

According to the Code, there are basic principles and procedures associated with disciplinary and dismissal action which an employer and employee should comply with, a summary of which is set out below.

 

Basic Principles

The Code provides that it is important to help managers and employees understand what the rules and procedures are, where they can be found clearly in writing and how they should be used. We can assist employers in relation to drafting such rules and procedures, if necessary.

Ignoring or circumventing the procedures when dismissing an employee is likely to have a bearing on the outcome of any subsequent employment tribunal. Therefore, an employer should ensure that those employees responsible for using the disciplinary rules and procedures are trained for the task. This is likely to include managers at all levels in addition to those employees working in Human Resources. With this in mind, it may be the case that employers need to implement or review their training in accordance with the basic principles and procedures of the Code.

Both employers and employees should not unreasonably delay meetings, decisions or confirmation of those decisions and should ensure that they act consistently throughout the procedure.

In addition, employers should:

  • ensure appropriate people are appointed to investigate and consider the issues;
  • carry out any necessary investigations to establish the facts of the case;
  • inform employees of the basis of the problem and provide them with an opportunity to present their case before any decisions are made;
  • inform employees of their right to be accompanied at any formal hearing;
  • allow them to be accompanied; and
  • allow employees to appeal against any formal decisions.

 

Procedure

The key steps to handling disciplinary issues in the workplace include the following:

1. Establish the facts
An employer should carry out any necessary investigations of potential disciplinary matters without unreasonable delay and should consider evidence, fairly and objectively, which both supports and opposes the employee’s position.

It may be necessary to hold an investigatory meeting with the employee to establish the facts; if so, this should not lead to any disciplinary action at that stage. There is no statutory right for an employee to be accompanied at this meeting, although an employer’s own policies may grant such a right.

Where an employer considers it necessary to suspend an employee with pay for a period of time whilst investigations are carried out, this should be as brief as possible and kept under review.

 

2. Notify the employee
If it is decided that there is a disciplinary case to answer, the employee should be provided with written notice of the alleged misconduct/poor performance together with a copy of any written evidence/statements; the possible disciplinary consequences of the alleged behaviour; details of the date, time and venue for the meeting; and advice to the employee that they are entitled to request to be accompanied at the meeting by a colleague, a trade union representative or an official employed by a trade union. If an employer or employee intends to call witnesses to the disciplinary meeting, advance notice must be provided to the other party.

 

3. The disciplinary meeting
Although the Code does not set out the format for the disciplinary meeting, ACAS suggests it is good practice for the employer to commence the meeting by introducing those present and why they are there, the role of the employee’s accompanying person (if present), and the purpose of the meeting. The employee should be given the opportunity to state their case and respond to any allegations made about them. At the end of the meeting, the employer should summarise the main points and adjourn the meeting to consider its decision.

 

4. After the disciplinary meeting
An employer should inform the employee in writing whether or not disciplinary or any other action will be taken. Where it is concluded that such action is necessary, the employee should be given a written warning advising them of the change in behaviour or improvement in performance that is required, the timescales within which this must be reached and the consequences of failing to act.

If the employee fails to improve or carries out further acts of misconduct within the time period, a final written warning may be required. However, a final written warning may be issued in the first instance if the employee’s actions have had, or are liable to have, a serious or harmful impact on the organisation.

It may be justified for an employer to bypass the issue of written notices and proceed straight to dismissal for acts of gross misconduct (e.g. theft or fraud, physical violence or bullying, deliberate or serious damage to property). The seriousness of such acts will depend on the type of organisation, but an employer should still follow a fair disciplinary process before carrying out any such dismissal.

 

5. Dismissal
A decision to dismiss an employee should only be taken by a manager who has the authority to do so. Such a decision may be difficult to make and the consequences potentially far-reaching for both the employee and employer if the wrong decision is made.

 

6. Appeal
If an employee feels that the disciplinary action taken against them is wrong or unjust, they are entitled to appeal that decision. A meeting to discuss the appeal should be held within a reasonable time period and should be dealt with by a manager who was not previously involved in the case, if possible.

 

Our Advice

We recommend seeking advice from solicitors before an employer proceeds with disciplinary action or an employee is faced with such an action. At Dixon Ward, we have extensive experience in dealing with such matters and would be happy to discuss your particular case with you at any time.

 

This document is for general information only and is not intended to provide legal advice. Dixon Ward accepts no liability in connection with any loss suffered as a result of reliance on the information contained in this Factsheet. If you require further legal advice, please get in touch with one of our specialist lawyers.

Our Business & Employment Law team

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Rod Horler

Business Law & Employment / Dispute Resolution
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Sharon El-Nawar

Dispute Resolution / Business Law & Employment
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Aryana Odisho

Dispute Resolution / Business Law & Employment
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