Disciplinary procedures and the employment contract
Every employer has a duty to inform every employee of:
You can either include this in their written statement of
employment or refer in the statement to where they can find the
information, eg in a staff handbook.
If you fail to provide this information to an employee and they
succeed in an employment tribunal claim against you, they could
be awarded two or four weeks' pay.
The contractual status of disciplinary procedures
Your dismissal and disciplinary procedures may not necessarily
form part of an employment contract. In this case, an employee
may not be able to claim breach of contract if you fail to
If you do choose to make your disciplinary procedure contractual
and you fail to follow it when taking disciplinary action, the
employee could bring a breach of contract claim against you.
Telling staff about disciplinary rules and procedures
It's important that you tell your employees about your rules on
acceptable and unacceptable behaviour in the workplace, and the
consequences of breaching them.
Setting out disciplinary rules
Your disciplinary rules should cover:
health and safety
discrimination, bullying and harassment
smoking, and alcohol and drugs consumption
use of company facilities and equipment for personal reasons
in work time
Your rules should make it clear that if an employee doesn't meet
the minimum standards of conduct, you may begin disciplinary
action against them.
The rules should also give examples of what behaviour you will
treat as gross misconduct. This is misconduct judged so serious
that it's likely to lead to dismissal without notice, such as:
bullying and harassment
drunkenness or drug abuse
fighting at work
gross negligence or insubordination
serious breaches of health and safety
wilful damage to property
use of the internet or email to access pornographic, obscene
or offensive material
Make it clear that the list is not exhaustive. What counts as
gross misconduct varies depending on the type of business and
the role of the employee.
Your disciplinary procedure should follow the principles set out
in the Acas code of practice on disciplinary and grievance
If you unreasonably fail to follow the code during a
disciplinary procedure and the issue ends up at an employment
tribunal, the tribunal could increase compensation to the
employee by up to 25 per cent.
Investigating disciplinary issues
When faced with a potential disciplinary issue, you should carry
out a full investigation before taking any action. Consider:
the alleged breach of discipline
the circumstances and consequences of the breach
the employee's job, experience, length of service and
any recent changes to the employee's job
the evidence of any witnesses
whether the employee has received appropriate counselling or
any mitigating circumstances, eg health or domestic
problems, or provocation
You should then review the evidence and decide if:
a case exists and whether it is serious enough for
there is an alternative to disciplinary action, eg an
informal chat or redeployment
Suspending an employee while an investigation takes place
For certain serious offences you may need to suspend an employee
while you investigate the issue. They should continue to receive
their full pay.
You can only suspend an employee without pay if this is allowed
in their contract of employment.
Criminal offences as a disciplinary issue
Don't dismiss someone just because they have been charged with
or convicted of a criminal offence, either at work or outside of
work. You should consider the seriousness of the offence and
whether it affects their suitability to continue working for
If it does, follow your normal disciplinary procedure. If it
doesn't, decide whether you can keep their job open during their
Base your decision on a reasonable belief following an
investigation into the circumstances. If a criminal charge has
been made, don't put off taking appropriate, fair and reasonable
disciplinary action just because the outcome of the prosecution
isn't yet known.
Informal and formal action for misconduct and poor performance
If an employee's performance or conduct does not meet your
standards, you should try to help them improve. Have an informal
discussion with them as soon as you're aware of a problem.
Explain what they're doing wrong and agree actions to be taken.
If the employee's poor conduct or performance continues, you may
have to take formal disciplinary action.
Your disciplinary procedure should meet the good-practice
principles set out in the Acas code of practice on disciplinary
and grievance procedures.
Remember that the employee has the right to be accompanied by a
colleague or union representative at any formal disciplinary
Disciplinary action for misconduct
In cases of misconduct, you should have a meeting with the
employee to explain the disciplinary procedure and your reasons
for initiating it. After this, you could either drop the issue
or give the employee an informal verbal warning.
After an informal warning, you should allow the employee time to
improve their behaviour.
Disciplinary action for poor performance
In cases of poor performance, the procedure is different. As a
first step, meet with the employee to agree an improvement plan.
This should include a realistic timescale for improvement,
details of support to be given to the employee and a date for a
performance review. Make notes of what you agree and use it as
an agenda for the review.
If your employee's performance has not improved after the
review, consider issuing an informal verbal warning. Carry out a
further review and issue a further informal warning if their
performance still hasn't improved. If they continue to not meet
the required standards, you should consider holding a formal
Preparing for a formal disciplinary hearing
Before you hold a disciplinary hearing, you should:
familiarise yourself with your disciplinary procedure so
that you apply it correctly and act in a fair and consistent
carry out a full investigation and make sure you have all
relevant facts and details of any past disciplinary action
taken against the employee
inform managers and witnesses who may need to attend
obtain statements from any witnesses unable to attend the
arrange for someone to take notes
arrange for another manager to attend the hearing to act as
a witness to the proper conduct of the hearing
You should also also ensure that the employee has:
plenty of time before the meeting to prepare their case and
consult any representatives
details of the complaint, the procedure to be followed and
the need for them to attend a disciplinary hearing
had the opportunity to exercise their right to be
accompanied at the hearing by a colleague or trade union
copies of any documents you intend to rely on as evidence at
If the employee is a trade union representative, it is advisable
to discuss the case with a full-time trade union officer or
senior trade union representative.
Holding a formal disciplinary hearing
When holding a formal disciplinary hearing, you should:
ensure that it's private and won't be interrupted
introduce everyone and explain why they are there
explain the reason for the hearing and how it will be
describe the exact nature of the complaint and go through
allow the employee to see any documents they haven't already
give the employee a chance to state their case and to
respond to any allegations made
get all the facts and take note of any special circumstances
summarise what's been discussed and highlight any issues
that need to be investigated further
If it becomes clear that the employee has a satisfactory
explanation for their conduct or performance, stop the hearing
and take no further action.
If an employee raises a separate grievance during a disciplinary
hearing, you may have to call a halt to the hearing and deal
with the grievance first.
Informing the employee of your disciplinary decision
Following a disciplinary hearing, you should inform the employee
as soon as possible in writing of:
the disciplinary penalty you plan to impose, if any
the reasoning behind your 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
their right of appeal and how this should be carried out
Dealing with delays to the disciplinary hearing
If the employee is genuinely unable to attend the disciplinary
hearing, offer them a reasonable date and time as an
If the employee's companion cannot make the rearranged hearing,
the employee must propose another date and time which is no more
than five working days after the day you originally proposed.
If the employee fails to attend the rearranged hearing, you can
treat this stage of the procedure as complete and make your
decision there and then. You must still inform the employee in
writing of your decision and let them know that they have the
right to appeal.
If you cannot make the rearranged hearing, you must offer the
employee a reasonable alternative date and time.
Notify the employee as soon as possible of any delays. If you
fail to do so, an employment tribunal could increase any
compensation awarded to the employee.
Dealing with long-term absence
An employee may well become anxious or stressed in the run-up to
a disciplinary hearing, which can lead to them being absent with
If this happens, you can ask the employee's GP or an
occupational health specialist for a medical report. You must
gain the employee's agreement before doing so.
The report should state whether or not the employee is fit
enough to attend a hearing in the near future.
If they are deemed fit enough to attend, you should arrange the
hearing with the employee in the normal way.
If they are not fit to attend, you might not be able to complete
the disciplinary procedure without unreasonable delay. You can
treat the procedure as having been completed and make a decision
in the employee's absence. You should still tell the employee
that they can supply written material for their defence if they
Dealing with grievances raised during disciplinary procedures
At some point during the disciplinary process, the employee
concerned may raise a grievance.
If this happens, you should suspend the disciplinary process and
deal with the grievance. If the grievance and disciplinary cases
are related, you should try to deal with them together.
Disciplinary action you can take
After a disciplinary hearing, you could decide to:
drop the issue completely
issue another - or final - written warning
provide counselling or training to help resolve the issue
apply a disciplinary penalty, such as demotion or dismissal
Take account of factors such as the employee's previous record
and any special circumstances in making your decision.
Disciplinary action other than dismissal
If you feel that the employee's misconduct or poor performance
was not serious enough to dismiss them, you could:
transfer them to another job
fine them, eg by not paying a bonus that they might have
been eligible for
suspend them without pay - this is not very common and would
mean that you lose the employee's services for a time
To avoid potential employment tribunal claims, you should ensure
disciplinary actions are outlined in the employee's contract of
Dismissal as a disciplinary action
The most severe disciplinary penalty is dismissal. Normally you
should only dismiss if - throughout the disciplinary process -
issued warnings, either formal or informal
made it clear that if the employee failed to improve their
conduct or performance they could be dismissed
In gross misconduct cases, you may be able to dismiss an
employee immediately without giving notice or pay in lieu of
notice. This is called summary dismissal and is generally not
Ideally, for any misconduct you should:
Holding a disciplinary appeal hearing
An employee has the right to appeal against the decision you
make after the disciplinary hearing. You must tell them that
they have this right when you give them written notice of your
decision. Give them a deadline to let you know whether or not
they want to appeal.
If the employee does appeal, you must try to hold the appeal
hearing without unnecessary delay.
Before you hold an appeal hearing, you should make the same
preparations that you made before the earlier disciplinary
Holding an appeal hearing
The principles for holding an appeal hearing are generally the
same as for the initial disciplinary hearing.
However, at the appeal hearing, you should also consider:
Ideally the person hearing the appeal should be different to the
person that heard the initial hearing.
However, where the person hearing the appeal also heard the
first hearing, they should act impartially and make sure they
review the original decision carefully.
After the hearing, write to the employee with your decision and
the reason for it as soon as possible. If the decision is final,
your letter should make this clear.
Appeals to external bodies
Some industries have procedures for dealing with appeals agreed
between employer bodies and trade unions. This should be stated
during the disciplinary procedure. The construction industry is
one example of where this happens.
Dealing with delays to the appeal hearing
You should deal with delays to the appeal hearing in the same
way that you deal with delays to earlier disciplinary hearings.
Let the employee know as soon as possible of any delays to the
appeal process. If you don't, an employment tribunal could
increase any compensation it awards to the employee.
If you are unsure
which course of action to take we would strongly recommend
seeking the advice of an employment solicitor. You can submit an
enquiry or search for a local employment law specialist in your
area at the top of this page.