Running a Fair Disciplinary Process

Before starting formal disciplinary proceedings, carry out a reasonable investigation to establish the facts. The depth of investigation should be proportionate to the seriousness of the allegation — a minor conduct issue may require only a brief conversation with a line manager; an allegation of gross misconduct may warrant a more detailed fact-finding exercise including interviews and document review.

Where possible, the person who investigates should be different from the person who chairs the disciplinary hearing. This separation supports procedural fairness. Suspension may be appropriate during investigation for serious allegations, but should be on full pay, treated as a neutral act (not a punishment), and be as brief as possible. An unreasonably prolonged suspension can itself be a breach of contract or lead to a constructive dismissal claim. Document your investigation notes carefully — these will be crucial if the matter reaches a tribunal.

Before the hearing, provide the employee with written notification of the allegation, the evidence gathered, and the date and time of the hearing. Allow sufficient notice — typically at least 48 hours — so they can prepare. Inform them of their right to be accompanied by a colleague or accredited trade union representative (not a solicitor, unless your contractual policy provides for this).

At the hearing, the chairperson should explain the allegation and present the evidence. The employee must then have a full opportunity to respond, present their own evidence, and call witnesses. Adjourn the meeting to consider the evidence before reaching a decision — avoid deciding on the spot. The possible outcomes range from no action to a first written warning, final written warning, demotion, or dismissal. The sanction must be proportionate to the misconduct. Only gross misconduct (theft, violence, serious health and safety breaches, serious dishonesty) justifies summary dismissal without notice.

Every employee disciplined or dismissed must be offered the right to appeal the decision. The ACAS Code requires you to set out how and when to appeal in the disciplinary outcome letter. The appeal should ideally be heard by a more senior manager who was not involved in the original decision. The appeal is a fresh consideration of the decision — not merely a review of the process. At the appeal hearing the employee again has the right to be accompanied.

If the appeal is upheld, any warning should be removed from the employee's record. Keep all records — investigation notes, hearing notes, outcome letters, and appeal records — for at least six years. Records of gross misconduct dismissals should be kept longer. Tribunals will expect to see a clear paper trail showing a fair and proportionate process was followed at every stage.

The ACAS Code of Practice on Disciplinary and Grievance Procedures is not law, but it carries significant weight. Under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, an Employment Tribunal can increase any compensatory award by up to 25% where the employer has unreasonably failed to follow the Code, and can reduce it by up to 25% where the employee has unreasonably failed to comply with it. The Code applies to disciplinary cases and formal grievances — not to redundancy or retirement.

From the employer's perspective, the most common procedural failures that lead to successful unfair dismissal claims alongside the substantive merits are: failing to investigate sufficiently before commencing the formal process; combining investigation and adjudication in the same person; failing to disclose all the evidence relied upon to the employee before the hearing; not giving the employee a proper opportunity to respond; and denying or obstructing the right of accompaniment. Tribunals are empathetic to small employers who lack formal HR infrastructure but still expect the basic steps to be followed — an informal but documented process is better than no process at all.

The overall test at the Employment Tribunal for unfair dismissal is the band of reasonable responses test from Iceland Frozen Foods v Jones: was the decision to dismiss (and the process used) within the range of reasonable responses open to a reasonable employer? This gives employers a degree of latitude — a tribunal will not simply substitute its own view. However, where an employer has made a procedural error, they may still escape a finding of unfair dismissal if the tribunal is satisfied that a fair procedure would have made no difference to the outcome (Polkey v AE Dayton Services reduction). Even where dismissal is found unfair, Polkey reductions mean compensation is reduced to reflect the chance that fair procedure would have led to the same result.