Step 2: Following a fair procedure
If the employer has considered trying to resolve the issue informally but feels they need to start a disciplinary procedure, they must tell the employee straight away.
They should do this in writing and should include:
- sufficient information about the alleged misconduct or poor performance
- possible consequences, for example a written warning
The employee should have this information in time to prepare for a disciplinary 'hearing'. This is a meeting where the employer hears all the evidence to make a final decision.
The employer must make sure they follow a full and fair procedure throughout.
This is for the protection of the employee, the employer and their organisation.
The importance of following a fair procedure
The Acas Code of Practice on disciplinary and grievance procedures is the minimum an organisation must follow.
You might have your own code or policy with some differences that better suits your organisation.
Although the Acas Code is not the law, if a disciplinary case reaches an employment tribunal, judges will take into consideration whether the employer has followed the Acas Code in a fair way.
The Acas Code mainly applies to those with employee employment status. But to keep good working relationships, employers should follow the same fair procedure for all workers.
Training for employers and managers
To learn more about the Acas Code and how to follow a formal procedure, you can book Acas training on discipline and grievance.
If anything similar has happened before
Employers should check whether their organisation has dealt with a similar situation before.
To avoid accusations of unfair treatment, employers should follow the procedure and policy in the same way for each disciplinary case.
They should gather evidence and make a decision based on what they know about each case.
It's important throughout the procedure for the employer to keep talking with both the employee being disciplined and any other staff affected.
Clear, regular and confidential communication can help avoid:
- a drop in work morale
- stress or other mental health problems
- further action, for example the employee raising a grievance
- legal action further down the line
The employer should keep all personal information confidential.
Looking after employees' wellbeing and mental health
Going through a disciplinary procedure can be very stressful. It's important that employers consider the wellbeing and mental health of their employees.
Looking out for the employee's wellbeing and offering support can help prevent:
- mental health problems arising
- existing mental health problems getting worse
If the employee raises a grievance
If the employee raises a grievance during the disciplinary procedure, the employer can pause the disciplinary and deal with the grievance first.
It might be appropriate to deal with both at the same time if the grievance and disciplinary cases are related.
If the employee wants to resign
The employee might feel they want to resign or 'jump before they're pushed' when they are facing a disciplinary.
This could risk the employee later claiming constructive dismissal at an employment tribunal. They can only do this if they have worked for the organisation for 2 years or more.
The employer should try and talk through any concerns with the employee and encourage them to complete the disciplinary procedure first.