Disciplinary procedures for misconduct

A step-by-step guide to handling formal disciplinary action

When misconduct is serious or when informal measures have failed, employers may begin a formal disciplinary procedure. This process is designed to ensure that the employee has a chance to understand the accusations, respond, and take corrective steps if necessary. Let’s look at each stage in detail.

1. The investigation process

The first step in any disciplinary procedure is an investigation. The purpose of the investigation is to gather facts and determine if there is enough evidence to proceed with a disciplinary hearing.

How the investigation works:

• Appointing an investigator: An impartial investigator, often a manager or HR representative not involved in the incident, is appointed to conduct the investigation.

• Gathering evidence: The investigator collects evidence, which could include documents, emails, CCTV footage, or witness statements. They may also interview other employees who witnessed the misconduct.

• Investigation meeting with the employee: The employee may be asked to attend an investigation meeting to discuss the allegations. This meeting is not a disciplinary hearing; it’s purely to gather information. The employee may bring a companion, such as a union representative, to this meeting.

• Conclusion of the investigation: If the investigation shows that there’s a case to answer, the employer will decide whether to proceed with a disciplinary hearing. If there is insufficient evidence, the employer may decide to end the process here. In some cases it might be appropriate for the employee being investigated to be suspended. It should be made clear that suspension is paid (as not to disadvantage the employee) and is without pre-judgement. 

2. Preparing for the disciplinary hearing

If the investigation finds enough evidence to proceed, the next step is a disciplinary hearing. The employer must inform the employee in writing of the hearing details, including:

• The allegations: A clear explanation of the misconduct allegations, so the employee knows exactly what they’re being accused of.

• Supporting evidence: Any evidence collected during the investigation, such as witness statements, emails, or reports, should be shared with the employee.

• Date, time, and location: Details of when and where the hearing will take place, with enough notice for the employee to prepare.

• Right to representation: Employees have the right to bring a companion to the hearing, such as a trade union representative or a work colleague.

The hearing gives the employee an opportunity to respond to the allegations and present their side of the story.

3. The disciplinary hearing

The disciplinary hearing is a formal meeting where both sides present their case. Here’s a breakdown of what to expect during the hearing:

Key steps in the disciplinary hearing:

• Introduction and outline of the hearing: The person chairing the hearing (often a senior manager or HR representative) will outline the process and set the tone for a fair and respectful discussion.

• Presentation of allegations and evidence: The employer will go over the allegations and present the evidence collected during the investigation.

• Employee’s response: The employee is then given an opportunity to respond, ask questions, and present any evidence that may support their case.

• Witnesses and clarifications: If there are any witnesses, they may be asked to attend the hearing. Both the employer and employee can ask questions to clarify the facts.

• Summing up: At the end, both sides will summarise their points. The hearing manager will take notes and review all information before making a decision.

The hearing is often adjourned to give the employer time to consider the evidence before reaching a decision.

4. The decision

After reviewing the evidence and listening to both sides, the employer will decide on the outcome. The decision will depend on the severity of the misconduct, the employee’s history, and any mitigating factors presented during the hearing.

Possible outcomes:

• No disciplinary action: If the evidence doesn’t support the allegations, the employer may decide to take no action, and the employee can return to work without any record of the incident.

• Formal warnings: If the misconduct is proven but is not severe enough to justify dismissal, the employer may issue a formal warning. There are generally three levels of warnings:

  • First written warning: Issued for minor misconduct and usually stays on the employee’s record for a set period.
  • Final written warning: If the misconduct is serious or if the employee has previously received a warning, a final written warning may be issued, highlighting that further issues could lead to dismissal.

• Dismissal: In cases of gross misconduct or repeated misconduct after warnings, the employer may decide to terminate the employee’s contract. Dismissal should always be a last resort, and it must be handled carefully to avoid any claims of unfair dismissal.

• Demotion or suspension: Some employers may choose alternative actions, such as suspending the employee without pay or reducing their role, especially if dismissal feels too severe.

The outcome and reasoning will be communicated to the employee in writing, along with information on the right to appeal.

5. The appeal process

If the employee disagrees with the decision, they have the right to appeal. The appeal process allows the employee to challenge the decision and present any new evidence or information that may affect the outcome.

Key steps in the appeal process:

• Filing an appeal: Employees usually need to file an appeal in writing within a specified timeframe (often within five to ten working days after receiving the decision).

• Appeal hearing: An appeal hearing will be held with a different manager who wasn’t involved in the initial disciplinary hearing. This ensures a fair review of the case.

• Presenting new evidence or concerns: The employee can present any additional evidence or raise concerns about how the procedure was handled, such as lack of fairness or bias.

• Final decision: After reviewing the appeal, the employer will make a final decision. This decision will be communicated to the employee in writing and is typically the final stage in the process.