Employment law – Dismissal and disciplinary process
How should you employer deal with a disciplinary matter against you?
Minor conduct issues can often be resolved informally between you and your employer.
If the allegations against you are more serious, it is likely that your employer will decide to take a more formal route. They will then need to comply with a minimum expected disciplinary and dismissal process. This process is largely governed by the ACAS Code of Practice (“the Code”), the details of which are summarised below.
The Code is not legally binding. A failure to follow it will not therefore always result in an automatic penalty for either the employer or employee. However, an employment tribunal will definitely take the Code into account. If, for example, there is no justifiable reason why the minimum expected process hasn’t been followed, it is likely that you will win a claim for unfair dismissal.
A failure by your employer to follow the Code can also allow tribunals to adjust an increase in any award of damages by up to 25%.
Please note that unless you have been employed for 2 years, you will not qualify in being able to being a claim for unfair dismissal, except in exceptional circumstances – even if a minimum process has not been followed. Please click here to go to the unfair dismissal page which sets out the exceptions.
General guidelines of the ACAS Code
Whenever a disciplinary process is being followed the Code makes clear that it is important to deal with issues fairly. In particular:
- Employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions.
- Employers and employees should act consistently.
- Employers should carry out any necessary investigations, to establish the facts of the case.
- Employers should inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made.
- Employers should allow employees to be accompanied at a formal disciplinary meeting.
- Employers should allow an employee to appeal against any formal decision made.
Disciplinary procedures expected under the ACAS Code in more detail
The Code sets out procedures the employer should follow when handling a disciplinary:-
Employers should carry out an investigation of potential disciplinary matters without unreasonable delay to establish the facts of the case. Different people should carry out the investigation and the disciplinary hearing.The amount of investigation required will depend on the nature of the allegations and will vary from case to case. It may involve interviewing and taking statements from you and any witnesses, and/or reviewing relevant documents. If it is necessary to have a meeting with you within the investigation process, such a meeting should not form part of the disciplinary process.
If there is an investigatory meeting this should not by itself result in any disciplinary action. Although there is no statutory right to be accompanied by a trade union official or work colleague at a formal investigatory meeting, this may be allowed under your employer’s own disciplinary process.
If your employer considers that there is a disciplinary case to answer, you should be notified in writing with sufficient information and/or evidence and be given details of the meeting time and venue. The disciplinary meeting should be held without unreasonable delay and allow you reasonable time to prepare your case. The law does not state what is considered to be “reasonable”, but usually at least a few days is expected and sometimes up to a week will be appropriate. The amount of notice will depend on a number of factors including the amount of evidence supplied, as you will need sufficient time to review this evidence and prepare your case before the hearing takes place.
You also have a statutory right to request to postpone the disciplinary hearing for up to 5 working days, if your chosen companion is not available to attend on the initial date set by your employer (see below).
There is no legal requirement by your employer to disclose the identity of witnesses, However, there does need to be a powerful reason not to do so as it would otherwise undermine your right to properly challenge the evidence. Employers, after all, have an obligation to undertake a fair disciplinary procedure, which will include attempting to obtain reliable, corroborated evidence. Your employer should therefore explore the witness’s reasons for wishing to remain anonymous, and decide whether or not it should disregard such evidence, or decide to give it less weight than statements from named witnesses.
At the meeting, your employer should explain the reason for the disciplinary and go through the evidence. You should be allowed to answer any allegations, ask questions, present evidence and call relevant witnesses. You should give your employer advanced notice of an intention to call witnesses.
An employee has a general right to be accompanied at the disciplinary meeting. The law provides that after a reasonable request, a worker must be allowed to be accompanied at a hearing by a single companion, chosen by him or her from three categories of people. These categories are:-
- a trade union official employed by the union;
- a trade union official who is certified in writing by the union as having the necessary experience or training to act as a companion;
- or another of the employer’s workers.
If your chosen colleague is not available at the time proposed for the hearing, you are entitled to propose an alternative time which falls before the end of the period of 5 working days. The tribunal has said that a refusal by an employer to allow even longer that this period can amount to an unfair dismissal on procedural grounds where they are clearly acting unreasonably.
Your companion must be permitted to address the hearing in order to put your case, and sum up the case and respond on your behalf to any view expressed at the hearing. He or she must also be permitted to confer with you during the hearing. However, your companion has no right to answer questions on your behalf, to address the hearing if you do not wish him or her to do so, or to prevent your employer explaining its case.
You do not have to be a union member to request to be accompanied by a trade union official, but this is subject to that trade union official agreeing to appear on your behalf. You may find that you do not have this option because you do not have the minimum period of membership of that union.
After the meeting, your employer should inform you in writing if disciplinary action is to be taken. For misconduct or poor performance reasons, employers are usually expected to give a first and then 2nd (final) written warning before moving to any dismissal. In less extreme cases, a verbal warning may be given (see below). In the case of a gross misconduct dismissal, it is usual that you do not receive a first or second warning. Instead, the termination of your employment is immediate and also without payment of notice (this is also known as “summary dismissal”).
A decision to dismiss should only be taken by a manager who has the authority to do so.
The ACAS Code recommends that employees should be informed how long a warning will remain current, and in the case of a final warning, the consequences of further misconduct within that period. ACAS suggests that first written warnings should remain active for 6 months, and final written warnings for 12 months.
What is a verbal warning?
Many employers give an “off the cuff” verbal warning, such as “you’re late again- consider this a verbal warning“. However, unless such warning comprised part of a disciplinary process as outlined above, your employer would not be able to rely on it as part of any future disciplinary or tribunal proceedings.
Even where a verbal warning is given after a disciplinary meeting, your employer still needs to confirm this in writing- and yes, it is something to get your head round for a verbal warning needing to be set out in writing.
What if you are unable to attend the meeting due to sickness, or otherwise wish to postpone the disciplinary meeting?
If you are persistently unable or unwilling to attend a disciplinary meeting without good cause, the ACAS code says your employer may end up having to make a decision on the evidence available, and without you present. It will usually be reasonable for an employer to do this when an employee is being difficult or trying to inconvenience an employer. The tribunals have said that this will also include situations where, even without bad faith on the part of the employee, proceedings have gone on for long enough and a decision must be taken.
If you are off sick, your employer should proceed with extra caution, but again they are not expected to put off a disciplinary hearing indefinitely. Your employer should only proceed to hearing if they have exhausted other avenues, for example, inviting you to make written submissions if you cannot be present due to sickness, or trying to obtain an occupational health report on your ability to participate. It may be that a video call via zoom for example, would even be a appropriate way to proceed.
Note: Where you have a disability, your employer should have regard to the duty to make reasonable adjustments when issuing disciplinary warnings for sickness absence. This is because a policy, under which all employees (both disabled and non-disabled) are treated equally is capable of placing a disabled employee at a substantial disadvantage.
This means your employer may have to extend the point at which disciplinary action can be taken when having regard to periods of sickness absence.
There are clear risks to an employer in pressing ahead with a disciplinary hearing in the absence of an employee (whether because of the unavailability of a companion or for some other reason), as many employment tribunal cases have demonstrated. This is particularly the case if the outcome might have been different had the employee been present. The best practice would always be to give you a further chance to attend the hearing, although many employers regrettably do not follow what is considered to be best practice.
Employees have the right to appeal against a disciplinary action in writing. Appeals should be heard without unreasonable delay, and should be dealt with impartially by a manager who has not previously been involved in the matter. You should be informed in writing of the appeal hearing result as soon as possible.
An appeal may be based on various grounds including new evidence having come to light, or the severity or inconsistency of the penalty imposed.
You should not be punished by an increased sanction just because you have appealed. If, however, new evidence comes to light on a new and separate matter which works against you, then this should be dealt with by fresh disciplinary proceedings. Your employer should not simply impose an increase in the penalty within the appeal proceedings.
What if there are delays by your employer in dealing with the disciplinary process?
The disciplinary process should be dealt with in a matter of weeks, and unexplained delays in the proceedings will always be frowned upon by tribunals. However, it is recognised that more complex or difficult cases (for example, where fraud or a criminal offence is alleged) will inevitably take longer.
Can the same person investigate the disciplinary, whilst also carrying out the hearing and appeal?
A common failing found in tribunal claims is that the same individual is in charge of the disciplinary process from start to finish. Ideally, different people should carry out the investigation, disciplinary hearing and appeal stage, although tribunals do recognise that this will not always be practicable, particularly for small employers.
Can you insist on recording the disciplinary hearing?
There is no obligation on your employer to agree to you recording the hearing, although you are free to take written notes. It is quite usual for your employer to arrange for notes to be taken, and a copy provided to you. Your employer should consider whether or not it may be a reasonable adjustment for the hearing to be recorded if you have a disability that prevents you form hearing properly.
What if you don’t agree to the written notes of the meeting supplied by your employer?
Your employer should ask you to provide an amended version of the notes in the hope that these can be agreed. If your employer does not agree with your version, then both should be kept on record. A tribunal can be referred to both versions of notes, together with an acknowledgment that what was said at the meeting was not agreed.
Overlapping of a grievance and disciplinary process
In circumstances where you raise a grievance during a disciplinary process, the process may be temporarily suspended by your employer in order to deal with the grievance. Where the grievance and disciplinary issues are related, however, it may be appropriate to deal with both issues concurrently, and many employers opt for this to save time.
A dismissal will not necessarily be unfair if your employer does not put the disciplinary proceedings on hold to deal with a grievance. Each case will depend on its particular facts, and it will be down to the employer to show that not suspending the disciplinary process to investigate a grievance was a fair and reasonable thing to do.
If your employer has not followed a correct process, or their decision to dismiss you is not reasonable or proportionate, you may have a claim for unfair dismissal.
Is it better to resign before you are pushed if you are facing disciplinary proceedings?
Yes, in some circumstances it may be best to resign first. Please click here to access the gross misconduct page where this is issue is fully explored.
Am I entitled to written reasons for dismissal from my employer?
If you have at least two years’ service with your employer you have the right to request a written statement of the reasons for your dismissal. Your employer has 14 days to reply to the request, unless it is not reasonably practicable for it to do so.
If you are dismissed during pregnancy or maternity leave, you have an automatic entitlement to a written statement without having to request it (regardless of your length of service).