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What is a Workplace Disciplinary Procedure?

08 Sep 2021

A disciplinary procedure is an employer’s formal way of dealing with any misconduct issues. It can be used to deal with relatively minor issues such as lateness, to very serious issues such as theft. Every employer should have one.

You should familiarise yourself with your employer’s disciplinary procedure so that you know the process that should be followed. The procedure should also set out examples of what your employer considers gross misconduct.

Is a disciplinary procedure inevitable?

No, employers can choose to deal with issues informally first. This could involve simply speaking to an employee about an issue, or writing an informal letter of concern which does not constitute a formal warning. However, employers don’t have to deal with matters informally and the more serious an issue is, the less likely an informal approach would be appropriate.

What should I do if I find out I’m being disciplined?

Firstly, you should get a copy of your employer’s disciplinary procedure. There should be information in your employment contract to let you know where the procedure can be located, or in some cases the procedure may be set out within your contract itself.

Before a disciplinary hearing you should have received all of the relevant evidence from your employer, such as documents and/or witness statements. You should ensure you have received everything and if there are any further documents you want to rely on to defend yourself, or if there are any other witnesses you believe should be interviewed/questioned, you should let your employer know as soon as possible.

You can then prepare your own statement to set out your defence to the allegation or complaint against you for the disciplinary hearing and we can help you with this.

How will I know if I am involved in a disciplinary procedure?

The first step in a disciplinary process is usually to hold an investigation meeting with you before your employer decides on formal disciplinary action. However, this isn’t always necessary depending on the nature of the allegation and the evidence. There is also no requirement to give any notice of an investigation meeting.

If your employer is taking formal disciplinary action, they should write to you to explain what the allegation or complaint is against you, and provide you with enough information about the allegation to enable you to prepare a defence. Your employer should give you enough notice of a disciplinary meeting to enable you to prepare – usually at least 48 hours’ notice.

Can my employer suspend me from work during the disciplinary process?

Yes, you can be suspended whilst an allegation or complaint is investigated, although this should only be done in sufficiently serious cases. Any suspension should also be kept regularly under review, and should not be any longer than necessary.

If you are suspended, this should be with full pay. You should also be informed why your employer believes that suspension is necessary. If you are suspended without pay, this may not be permissible under your contract of employment so you should seek advice straight away. Your employment rights are maintained during any period of suspension, so if you do not get the right pay you may be able to make a claim to an Employment Tribunal for unlawful deductions from wages.

Whilst suspended, your employer may say that you are not allowed to talk to other colleagues, customers or suppliers. This could affect your ability to defend yourself; if it does, you should take advice on your options. If you’ve been asked not to talk to anyone and you do, your employer could take further disciplinary action against you.

If you are suspended for too long, this could impact on your ability to return to your job. You should seek advice if you believe this is the case.

What happens at disciplinary hearings?

The purpose of a disciplinary hearing is to hear your side of the story. The employer should explain the allegation and the evidence and then allow you to explain your defence and respond to all of the allegations that have been made. You’re entitled to comment on any of the evidence against you, as well as to present your own evidence. You’re also allowed to ask questions of any witnesses although if you intend to do this, you should let your employer know in advance.

Once your side of the story has been heard, the employer may stop the meeting to investigate the points you’ve raised and then reconvene it at a later date. However if this is not necessary, your employer will confirm the outcome of the hearing once it is over. This is usually done in writing a day or two after the meeting, although in some cases you may be told the outcome straight away.
Your employer should not make up their mind about the outcome until after they have heard your side of the story. You should take advice if you feel this was not done.

Can I take someone with me to the hearing?

Yes, you have a statutory right to be accompanied at any disciplinary hearing by either a colleague of yours or a trade union representative. You need to tell your employer in advance who you would like to accompany you. If the disciplinary hearing has been scheduled for a day on which your companion is not available, you also have the statutory right for the meeting to be rescheduled for up to five days later.

If you want to be accompanied by someone other than a colleague or trade union representative, you can ask your employer. However they are not obliged to allow this unless they’re contractually required to, or if it’s a reasonable adjustment because you have a disability.

If you are accompanied by someone at the hearing, your companion can present your case for you and support you throughout. They can also confer with you during the hearing, however they cannot answer questions on your behalf.

Your companion cannot be disciplined or subjected to any other detriment for being your companion. You also cannot be disciplined or subjected to any other detriment for exercising your right to be accompanied.

What are the possible outcomes of a disciplinary hearing?

The most common outcomes for a disciplinary hearing are:

  • No further action is taken;
  • A written warning;
  • A final written warning; or in sufficiently serious cases
  • Dismissal.

Your employer may also decide on another way to resolve the issue, such as demotion or mediation with a co-worker.

Normally dismissal only results from cases of gross misconduct, or from cases of less serious misconduct where you are already subject to a final written warning. If you have over two years’ service and believe you have been dismissed unfairly, you have the right to bring a claim for unfair dismissal in the Employment Tribunal.

Can I appeal the outcome of a disciplinary hearing?

Yes. You should receive a letter to confirm the outcome of the disciplinary hearing and if you have been given any type of sanction, the letter should set out your right to appeal. You normally have five working days to appeal, although your employer may set a different timescale.

If you wish to appeal, you should write to your employer to say that you believe the disciplinary action was unfair and that you’re appealing. You should also set out your grounds for appealing. We can assist you with writing an appeal letter.

If you appeal, the appeal hearing should be held as soon as possible and by someone who was not already involved in the disciplinary action. The hearing will be similar to the disciplinary hearing and you have the same rights to bring a companion. After the hearing, your employer should write to you with the decision. Unless your employer’s disciplinary process sets out a further right of appeal, that decision will be final.

If you need further guidance on how to deal with a workplace disciplinary procedure, please don’t hesitate to get in contact with us. We can advise you on finding out about your company’s processes and what options you have available at this point in time.

 

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Written by George Miller

George joined Richard Nelson LLP in 2021 as a Chartered Legal Executive, and is part of the firm's employment law team. He supports both employers and employees in a range of cases, including unfair dismissal, settlement agreements, and disciplinary procedures. Read more about George Miller

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