Here is an overview of how to handle employee disciplinary issues within the United Kingdom. The structure of the process is similar to the employee grievance process, although the outcome will be different. The outcome of a disciplinary investigation depends upon the circumstances and findings. It can range from no action at all, through to written warnings or even dismissal.
Try to resolve the matter informally
In general, it is best to avoid a formal disciplinary process for minor misconduct issues or employee performance. A quiet word may be enough to address the problem. If the employee is not performing as expected, an informal performance improvement process is a good starting point. This is where you establish some clear and realistic goals for the employee with reasonable timescales. Only consider a more formal process if the employee fails to attain those goals.
When talking informally to an employee, make sure they understand that it is informal. Employees have a statutory right to be accompanied to a formal disciplinary meeting. Therefore, it is important you don’t accidentally turn an informal chat into a formal one and end up non-compliant!
Do not delay taking action
Whenever there is a disciplinary concern, it is important to avoid undue delay. If too much time passes between the incident and the disciplinary process, it can undermine your justification for taking action now. In cases where the undesirable behaviour has been continuing over time, dealing with the matter promptly from the most recent incident is important. However, an obvious challenge will be why you didn’t take action sooner if it was a problem?
If you allow misconduct or performance problems to persist, you are sending a signal that the behaviour is acceptable.
Starting formal disciplinary proceedings
Use the formal process if, after using the informal approach, the employee behaviour does not change. In a sufficiently serious misconduct case, you can skip straight to the formal process.
There are several stages to a disciplinary process:
- Gather initial evidence, witness statements, etc.
- Inform the employee in writing of the allegation with copies of the evidence
- Invite the employee to a meeting to discuss the situation (this invitation may be part of the above letter)
- Based on the above and the balance of probability, determine whether to uphold the complaint against the employee
- Decide what disciplinary action to take from within a range of reasonable responses
In all cases, the first thing you must do gather the initial evidence, including witness statements if applicable.
You should then inform the employee in writing. Tell them what the issue is along with copies of any evidence. Inform them that you are treating it as a disciplinary matter and refer them to your documented disciplinary procedure. However, it is important that the employee understands that this is the start of the process. They must not feel that you have not already reached a decision or that there is any no pre-judgement.
The disciplinary investigation
Unless it’s a very simple situation, an investigation will usually be necessary. In cases involving misconduct, an investigation is probably essential.
Should the situation end up before an Employment Tribunal in future, the so-called “Burchell Test“ will be applied. In plain language, this means that the employer will have to demonstrate that:
- The employer had a genuine belief that the behaviour occurred
- There was enough evidence to support that belief
- There was sufficient investigation under the circumstances to support acting upon that belief
Although this applies mainly to misconduct, you should ensure all your disciplinary processes satisfy these conditions.
An initial meeting with the employee would be the first step. You can think of this as a “fact finding” meeting and it gives the employee a chance to have their say.
Ensure the employee understands the concern and give them copies of any evidence. Plan this meeting to allow sufficient time for the employee to prepare and remember that they have the right to be accompanied. This meeting should focus on talking though the matter, any supporting evidence and the employee’s version of events.
After that initial meeting, the investigation can then continue. This might involve additional meetings with other involved parties, or gathering further evidence.
Suspension with pay
If the situation is particularly serious or delicate, it may be better if the employee was not in the workplace. For example:
- The situation involves gross misconduct
- Relationships have broken down to the point that people have to be kept apart
- There is a potential threat to people or property
- There is a risk that evidence could be tampered with, destroyed or witnesses influenced
In these sorts of cases, you can suspend the employee from work but you must continue to pay them. Make sure the employee understands that this is not a disciplinary sanction and no assumption of guilt.
You need to carefully consider whether a suspension with pay is appropriate. Do the circumstances and the evidence warrant a paid suspension? Are there any alternatives, e.g. working from another office or from home?
There have been many cases where employers have ended up in trouble because they were too quick to suspend an employee.
Fairness and impartiality
You should approach the matter with an open mind. During the investigation, look at all the evidence. Do not just look for evidence that supports the allegation, look also for anything that supports the employee’s position. Once the investigator has evaluated all the evidence and completed any additional interviews, they should document the outcome.
The investigator will then discuss the outcome with the appropriate management and HR professional to decide what action to take.
Taking disciplinary action
Sometimes, you may determine that no action is necessary. Either no fault found was found with the employee, or the process itself was a sufficient consequence. However, if the investigation outcome supports taking disciplinary action, that action must be reasonable and proportionate to the situation. We refer to this as action that “falls within a range of reasonable responses”. Examples of this are:
- No further action required
- A first written warning or formal improvement plan
- A final written warning
- Dismissal, or some other appropriate sanction
Selecting which action is appropriate depends on the seriousness of the issue, whether this is a first or repeat incident, what your policies state and what action you have taken previously.
Whatever the action decided, you must inform the employee in writing. We recommend that you include a detailed explanation for the decision. Except in cases of dismissal, you should also explain what the consequences are for any further incidents.
A written warning should have a clear time limit or “expiry date”. The employee needs to demonstrate that the problem behaviour has ceased but at the same time, the warning should not hang over them indefinitely.
There are no hard rules over how long a warning is valid for. However, there are some common practices. For example, you may decide that a first warning applies for six months but a final written warning for a year. Warnings should not have indefinite validity. Document these timescales in your disciplinary policies.
Before going ahead with a dismissal, double check that there are no alternatives. The employment contract and your policies may allow for other options. For example:
- Demotion or equivalent loss of seniority
- Loss of a bonus or stock options
- Transfer to another business location
You need to be extremely careful with some of these. Make sure the employment contract supports the alternative. We would recommend getting legal advice on your proposed sanctions before implementing them.
You can dismiss an employee with or without notice. Except in cases of serious gross misconduct, you should only dismiss an employee with notice. Alternatively, you can dismiss the employee immediately with payment in lieu of notice. The latter is often a clean and swift way to part company.
Examples of gross misconduct
It is not really possible to produce an exhaustive list but common examples of gross misconduct include:
- Theft or fraud
- Physical violence or bullying
- Discrimination or harrassment
- Deliberate damage to property
- Misuse of the organisation’s property, brand or name
- Deliberately accessing obscene or offensive internet sites
- Incapability at work due to alcohol or illegal drugs
- Causing loss, damage or injury through negligence
- Serious insubordination or a breach of confidence
Again, these are just some common examples. As a general guideline, gross misconduct is any behaviour sufficiently serious that it threatens the employment relationship.
A warning about bonuses
The issue of bonuses can be complex. This depends upon the implementation of your bonus scheme (contractual vs discretionary) and what the contract allows. It is possible to withhold a bonus, as the case of Hellewell & Anor v AXA Services Ltd & Anor demonstrated. The test is whether the bonus forms part of “contractual pay” but it is not as simple as it sounds. If you have a discretionary bonus scheme, the obligation to pay may still exist.
A predictable and regularly paid bonus, e.g. an annual bonus, may become an implied part of employee remuneration. This is because it’s classified as a standing “custom and practice”.
For example, many banks have discretionary annual bonus schemes. Because these bonuses paid out every year, everyone expected them as part of their package. People accepted jobs on the basis of a base salary and a bonus.
One bank tried to avoid paying the bonus, claiming that it was discretionary. The employees took them to court and won. Because the bonus was an established and expected part of the pay package, it was now contractually implied.
The discretionary label was no defence.
The right of appeal
The employee has the right to appeal the disciplinary decision within a reasonable time frame. You should specify the time limit for an appeal in your decision letter and state that the employee should submit the appeal in writing. We recommend setting a deadline of five working days for submitting an appeal.
Where possible, you should use someone independent from the original investigation to evaluate an appeal. Just as for the original process, deliver the outcome of the appeal in writing.
Grievances during disciplinary processes
Sometimes an employee may raise a formal grievance during a disciplinary procedure. Often, the grievance is directly related to the disciplinary. For example, the employee may feel that they have been treated unfairly.
Normally, the disciplinary process will be put on hold while the grievance is dealt with. If the grievance does not directly impact the disciplinary, then it may be possible to handle them both in parallel.
Criminal charges and convictions
Generally, you cannot dismiss or discipline an employee for facing criminal charges or a new/unspent conviction, unless:
- The charges or conviction relate to gross misconduct, or
- The charges or conviction will make their continued employment untenable
For example, assume an employee is charged with affray after getting into a bar fight out of hours. If this has no connection to the workplace, other employees or your customers, it is really a private matter between the employee and the police.
On the other hand, if the criminal behaviour impacts employees, customers or your business reputation (e.g. getting into a fight in company uniform with your branding) then some disciplinary action may be reasonable.
Where there is a conviction, you must consider if the sentence affects the employee’s ability to carry out their role. There may not be any practical impact on their capacity to work from a suspended sentence or community service. On the other hand, a lengthy custodial sentence may make it impossible for them to do their job. This is sometimes described as a “frustration of the employment contract“.
Remember, if you dismiss an employee under these circumstances, you must be able to demonstrate that your decision was reasonable.
Spent vs unspent convictions
The notion of a spent or unspent conviction arises from the principle of rehabilitation. This is the idea that if an offender pays their debt to society with no further offending, they should be allowed to move on with their lives without that conviction forever hanging over them. This is what we call a “spent conviction“.
A conviction becomes “spent” after sufficient time has passed without any further offending. The length of time depends upon the nature of the sentence. For example, a two year prison sentence has a further four year “rehabilitation period”. This means that, in this example, it would take six years for the conviction to become spent. Until then, the conviction is unspent.
In general, an employer is not entitled to know or ask about spent convictions. There are some limited exceptions for certain positions.
If you discover that an employee has a spent conviction, then unless that role falls under one of those exceptions, you must not take any action against the employee. You must be very careful to ensure they are not treated differently, harassed or discriminated against by you or other employees.
Also, an employee is not obliged to tell you about an unspent conviction unless you specifically ask. This is why many employers ask about unspent convictions during the recruitment process and make offers conditional on pre-employment checks.
Discovering an existing employee has an unspent conviction
An unspent conviction might be a potentially fair reason for dismissal but don’t make any rash decisions. Do a risk assessment. Criminal convictions can exist for relatively minor offences too.
Think about whether the conviction has any relevance to their position. Does it actually pose any risk?
Also, how long have they been employed? If they have been with you for more than two years without any problems, then this should count in their favour.
There is a real risk of an unfair dismissal claim if you dismiss an employee with over two years service “just because they have a conviction”. You still need to be able to make a reasonable and justified decision to dismiss.