This guide sets out below the key issues and aspects of procedure when dealing with misconduct at work.
Misconduct generally relates to two types of behaviour: minor misconduct such as unauthorised absence or poor time keeping and gross misconduct such as theft or physical assaults.
Disciplinary procedures should ideally set out examples of what classes of behaviour you consider to be gross misconduct. Give careful thought to whether there are acts of misconduct that, when carried out at your specific workplace or within your industry will amount to gross misconduct.
Consider including a non-exhaustive list of misconduct and gross misconduct examples in your employment contracts. You must legally inform employees how they can access your disciplinary policy.
Ensure all staff members can access your disciplinary procedure and train your managers on implementing it.
When drafting your policy, check:
it complies with the ACAS Code of Practice on Disciplinary and Grievance Procedures. If an employee successfully claims unfair dismissal, remember that tribunals can make an uplift or reduction of up to 25% to compensatory awards for unreasonable failure to follow the code
the policy specifies that it is non-contractual and that you can change it at your discretion – this will prevent claims for breach of contract
the policy states that you can skip stages or levels of warning at your discretion – this gives you greater flexibility
When dealing with performance issues be careful not to breach the implied obligations to employees, such as the implied duty of trust and confidence.
The ACAS code reflects best practice and encourages employers to follow a fair disciplinary process, with the following key elements:
Raise and deal with issues promptly without unreasonable delay
Act consistently
Carry out necessary investigations to establish the facts of the case
Inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made
Allow employees to be accompanied to any formal disciplinary or grievance meeting
Allow an employee to appeal against any formal decision made
Appoint an investigation officer to investigate the alleged misconduct and recommend whether it is reasonable to instigate a formal disciplinary process. They should take notes of their findings which will be made available to the employee and the disciplinary officer.
Ideally the investigation officer will not be involved with the situation and will be separate from the disciplinary officer, although this is not always possible particularly in smaller companies.
It may be reasonable to ask an external person (e.g. independent HR adviser) to perform the role of investigation officer, disciplinary officer or appeal officer, depending on the nature of the allegations and/or the individuals concerned internally.
You may wish to hold an investigatory hearing with the employee themselves to gather necessary facts. They have no legal entitlement to be given advance notice or to bring a companion (trade union representative or fellow worker) to that meeting but this is good practice.
The courts have made very clear that suspending an employee during the investigation process should not be a ‘knee jerk’ or default decision. Suspending an employee without considering whether it is reasonable could be a breach of the implied duty of trust and confidence owed to the employee, and it could also undermine the fairness of your process.
Before deciding whether to suspend an employee, consider the following factors:
Could the suspension potentially damage the individual’s reputation to such an extent that they cannot rectify it even if you decide no misconduct has occurred?
Could the matter, if it ends in their dismissal, end their career?
Is the alleged misconduct serious enough to justify suspension and would the employee’s continued presence at the workplace causes a risk to staff, property, or clients?
Would the individual’s presence, perhaps, unintentionally hinder the investigation, for example by making witnesses feel uneasy about speaking up?
Are there alternatives, e.g. temporary move to another team?
If you suspend the individual, this should normally be paid, as brief as possible and kept under review. See useful ACAS advice.
If the matter is escalated to a disciplinary meeting, decide who will hear the disciplinary meeting. Ideally this would be someone independent of the alleged misconduct and investigation (see above re use of external parties). It may be appropriate for the investigating manager to present their findings in a report and attend the disciplinary hearing.
Formal invitation: invite the employee to the formal disciplinary meeting in writing and giving them reasonable notice (preferably at least 48 hours). Your invitation letter should set out:
the meeting arrangements - it should be held as soon as possible to ensure a prompt resolution of the concerns
full details of the allegations and copies of relevant documentation which will be relied on at the meeting (including, for example, the investigation report)
the possible consequences and whether dismissal is a possibility
the employee’s right to submit relevant information and/or call relevant witnesses at the disciplinary hearing, and
the employee’s right to be accompanied by a trade union representative or a workplace colleague. There may be situations where it might be reasonable to permit the individual to bring someone else e.g. family member but it will be for you to decide whether this is reasonable in the circumstances.
Postponing the meeting:
The employee can ask you to postpone the meeting so their companion can attend. You are legally obliged to postpone it by up to 5 days only.
If their companion cannot attend the postponed meeting, you should exercise your discretion either to proceed with the meeting or to agree a longer postponement. Check your policy in case it puts any specific obligations on you to agree longer postponements.
If the employee is persistently unable or unwilling to attend a disciplinary meeting without good cause, it may be reasonable to proceed with the meeting in their absence. This should only happen if you have warned the employee this is your intention, have given them at least one or more chances to attend before proceeding in their absence, and have encouraged the employee to attend the meeting by other means e.g. attending by telephone or submitting written representations.
At the disciplinary meeting, the manager should:
read the concerns out and ensure that the employee understands them
give the employee an opportunity to explain matters and say anything they wish, and
explore possible mitigation such as apologies, family circumstances, etc.
Decision making:
The disciplinary officer is the only person who makes the decision based on the information before them. Decisions should only be made after properly considering the evidence, whether that occurs after the meeting or after an adjournment
Neither HR nor any one person(s) in the business should try to influence the decision-making process as this will undermine the fairness of the process
If issues are raised at the meeting which cannot be decided upon immediately or further information is needed, the disciplinary officer can adjourn the meeting to carry out further investigations after the meeting
Full notes of the hearing should be kept. Copies of these should be provided to the employee after the hearing
If dismissal is a possibility, consider whether other sanctions such as a transfer, demotion or period of suspension without pay might be appropriate. (If these sanctions are not expressly set out in the disciplinary procedure, they can only be imposed with the consent of the employee as an alternative to dismissal.)
The business will not be penalised for the decision as long as it is in the ‘range of reasonable responses of the reasonable employer’. If this happens a tribunal will not substitute its view for the disciplinary officer’s and will recognise management prerogative.
Confirm the decision and sanction (if any) in writing to the employee as soon as possible.
If the sanction is a warning, ensure that the nature of the misconduct is given in writing to the employee and for how long the warning will be ‘live’
If the sanction is dismissal, inform them how notice will be dealt with, e.g. they need to work their notice period out, will be paid in lieu of notice, will be put on garden leave or alternatively, no notice is payable because it is gross misconduct
Inform them of the right to appeal the decision. It is commercially sensible to ask that appeals are submitted within a short timeframe, e.g. within 5 days of receiving the decision, and to ask them to provide full details for their appeal.
Sanctions for disciplinary offences will typically follow various stages: verbal warning, written warning, final written warning and then dismissal, but this is not necessarily appropriate in every situation such as serious misconduct.
You need to decide for how long these warnings will be ‘live’. Six months for verbal and written warnings and 12 months for a final written warning, are likely to be reasonable.
The sanction issued should be reasonable given the misconduct. A dismissal for a first instance of misconduct will generally only be reasonable in the case of gross misconduct.
In cases of gross misconduct, the sanction will normally be dismissal, but you should consider alternatives such as transfer, demotion or suspension without pay.
If you have decided to make a payment in lieu of notice or summarily dismiss the individual, you do not need to continue employing them until they submit an appeal, or their appeal is heard.
If they submit an appeal, invite the individual in writing to the appeal meeting as soon as possible by letter. Set out their right to bring a companion (as above).
The appeal officer should be different from the investigation and disciplinary officers and should have the authority to overturn the decision.
Inform the employee of the decision of the appeal officer in writing as soon as possible after the hearing. Explain that there is no further right of appeal.
