Disciplinary and dismissal – a guide for employees

What are the different ways an employer can discipline an employee?

Minor issues regarding an employee’s conduct are often resolved informally. For more serious matters, an employer might issue a verbal warning, a written warning, a final written warning or if the conduct is very serious they might also dismiss an employee.  For misconduct or poor performance issues, ordinarily employers are expected to give a first, then second warning, prior to a final written warning before dismissing an employee.  However, for cases of gross misconduct, an employer might summarily dismiss (dismiss without giving contractual notice) an employee for a first offense.

What is the ACAS code of practice?

The ACAS code of practice provides guidance to employers on how to discipline employees.  Whilst it is not legally binding on employees, it is considered to be good practice and an Employment Tribunal will take it into account when considering the fairness of a decision to dismiss an employee.  In addition, if an employee does bring a complaint of Unfair Dismissal and the code has not been followed (by either party), but there is no justifiable reason why not, an Employment Tribunal can adjust an award of damages by up to 25%.

The ACAS code contains some general guidelines which should be followed by an employer if they want to ensure the disciplinary process they are following is fair:

  • Meetings should happen and decisions should be made without unreasonable delay.
  • Employers should carry out an investigation to establish the facts of a case prior to disciplining an employee.
  • Employers should inform an employee of the allegations against them and provide them with the evidence collated and give them the opportunity to state their own case prior to making any decision.
  • Employers should allow employees to be accompanied at meetings.
  • Employers should give employees the opportunity to appeal any decision made as part of a disciplinary process.

The ACAS code does not apply to redundancy dismissals and the non-renewal of fixed term contracts. In addition, if you have not been employed for two years you will not ordinarily be able to bring a claim for Unfair Dismissal (although there are some exceptions) and so your employer may not follow the ACAS code in these circumstances.

What can you do if your employer failed to follow the ACAS code of practice?

If your employer failed to follow the ACAS code prior to disciplining you, you might be entitled to resign and claim constructive unfair dismissal.  This will very much depend on the individual facts of your case and we would always recommend seeking legal advice prior to actually resigning.  If your employer has dismissed you without following the ACAS code, you could have a claim for Unfair Dismissal.

What steps should your employer take prior to disciplining and/or dismissing you?

Your employer should:

  • Carry out a fair investigation without any unreasonable delay
  • Advise you in writing of the allegations against you as well as the possible outcome of the disciplinary hearing
  • Invite you to a disciplinary hearing (advising you of the location and date for the meeting) and allow you to be accompanied at the meeting by a work colleague or trade union official
  • Allow you a reasonable amount of time to prepare your case
  • Present the evidence against you at the hearing, allow you to state your own case and question any witnesses present
  • Advise you as to the outcome in writing without any unreasonable delay and notify you of your right of appeal
  • Hold an appeal hearing without any unreasonable delay and notify you of the outcome in writing

What is a fair investigation?

An employer should carry out an investigation without unreasonable delay.  The investigating officer should be different from the disciplining officer.  The extent of the investigation required in order for it to be fair will vary on a case-by-case basis but could involve interviewing witnesses and taking statements from them and/or reviewing any relevant documentation.

What should happen at a disciplinary hearing?

At the meeting, your employer should state their case and go through the evidence that they have collated.  You should be allowed to respond to the allegations and ask any questions you might have, which would include questioning their witnesses.  You should also be allowed to present your own evidence and call your own witnesses (but make sure you give your employer advance warning of them).

Am I allowed to be accompanied at a disciplinary hearing?

Yes.  Employees are allowed to be accompanied at a disciplinary hearing by a trade union representative or work colleague.  If the person you have chosen to be accompanied by is not available on the date set by your employer, you are entitled to request a change to the date so long as the new date is within 5 working days of the date originally set.

Am I allowed to appeal my employer’s decision?

Yes, the ACAS code provides for a right of appeal against a disciplinary decision, including the decision to dismiss.

What if you were unable to attend a hearing due to ill health?

If you are persistently unable to attend a hearing due to ill health, it is possible for your employer to make a decision in your absence based on the evidence available to them at the time.  However, if you not being able to attend is due to a disability, your employer is under an obligation to consider what reasonable adjustments can be made to the process to assist you in participating.  So, for example, allowing you to make written submissions, or conducting the hearing using video conferencing if you are physically unable to attend.

What if your employer delays the disciplinary process?

If your employer unreasonably delays the process, you might be entitled to resign and claim constructive unfair dismissal.  If they dismiss you after having unreasonably delayed the process, you could have a claim for unfair dismissal.

Do employees have to attend a disciplinary hearing?

Your employer cannot force you to attend a disciplinary hearing, but if you fail to do so they could be entitled to make a decision in your absence.  Also, any compensation you are awarded if you successfully bring a claim for unfair dismissal could be reduced by up to 25% because of your failure to comply with the ACAS code.

Can the same person conduct the investigation into the allegation and conduct the disciplinary and appeal hearings?

In terms of procedural fairness, it is preferable for an independent person (more senior than the last person) to conduct each stage of the disciplinary process.  However, Employment Tribunal’s do recognise that this might not always be possible for small employers.

Can I record the hearing?

The ACAS code doesn’t give an employee the right to record hearings and an employee should consider carefully before doing so without their employer’s consent as this could be classified as misconduct. The contents of a hearing should always be recorded in writing by your employer and it is advisable for an employee to also keep their own notes.

What if you don’t agree with the notes taken of the hearing?

After a hearing an employer should provide an employee with a record of the meeting and if the employee considers there to be any inaccuracies, they should advise the employer of that fact. Where the parties are unable to agree, both the employer and the employee’s notes of the meeting should be kept on file.

What if you raise a grievance during the disciplinary process?

If an employee raises a grievance during the disciplinary process, an employer can suspend the disciplinary process whilst they investigate the grievance.  However, if the grievance relates to the disciplinary process many employers will opt to deal with both processes concurrently.  A failure to suspend a disciplinary process which ultimately leads to an employee’s dismissal will not necessarily render the dismissal unfair, but will very much depend on the individual facts of a case and whether or not an employer can show that not suspending the process for fair and reasonable in the circumstances.

Does your employer have to put in writing the reasons why an employee was dismissed?

If an employee has more than 2 years’ service they are entitled to written reasons for their dismissal.

Can I bring a claim for Unfair Dismissal as a result of the way the disciplinary process was conducted prior to my dismissal?

Possibly.  A failure to follow the ACAS code would be indicative of a disciplinary process not being fair and if there is no justifiable reason for it having not been followed you are likely to win a claim for Unfair Dismissal.  However, in order to bring an Unfair Dismissal claim an employee usually needs 2 year’s service (although there are some exceptions).