Disciplinary hearings can expose employers to significant legal risks if the correct procedures are not followed consistently and fairly.

Disciplinary hearings can expose employers to significant legal risks if the correct procedures are not followed fairly and consistently.

In employment law, process can be just as important as the substance of the decision. Employment Tribunals generally assess whether an employer acted reasonably in treating the alleged misconduct as a sufficient reason for disciplinary action, including dismissal. They do not simply substitute their own view for the employer’s. A failure to follow a fair procedure can undermine an otherwise reasonable decision and result in a finding of unfair dismissal.

Drawing on our experience of the mistakes employers commonly make during disciplinary proceedings, we have prepared this best-practice guide. Before starting a formal process, it may be worth considering whether an informal discussion could resolve the issue. Some employees may decide to resign, while others may acknowledge the problem and agree to steps proposed by the employer.

Some employers prefer to have legal advice and assistance to reduce the risk of procedural mistakes. If you need specialist support with an employee disciplinary matter, please get in touch with our employment team.

Employment disciplinary process

Where allegations are serious, dismissal is a possible outcome, or the employee disputes the allegations, a formal disciplinary process may be necessary. The following steps can help employers manage the process fairly, starting with an investigation and consideration of whether suspension is appropriate.

• Notify the employee – The employee should be informed in writing that a formal investigation is beginning and that it may lead to disciplinary action. The notification should outline the nature of the allegations and the facts currently known.
• Consider whether to suspend the employee on full pay – Suspension should not be an automatic response. However, it may be appropriate where serious allegations raise concerns about the integrity of the investigation, the safety of others or the protection of the business. Employers should make clear that suspension is a neutral measure, not disciplinary action in itself. Suspension may sometimes be possible even where the employment contract does not expressly provide for it, but this requires particular care and an assessment of the contractual and legal position.
• Decide who should investigate – The employee’s line manager may be an appropriate investigator, but not where, for example, they made the complaint, are a material witness or have a conflict of interest. In those circumstances, another person should be appointed. Where practicable, the investigator should be different from the person chairing the disciplinary hearing, helping to ensure that the decision is reached impartially.
• Ensure the investigation is thorough, fair and impartial – An investigation is necessary even where the allegations initially appear well founded. The employee may have an explanation that needs to be considered. The scope of the investigation should be reasonable and proportionate to the circumstances, with more serious allegations generally requiring closer scrutiny. Employers should pursue relevant lines of enquiry that may support or undermine the allegations and gather sufficient evidence to establish the facts. The employee must be given sufficient information about the allegations to understand and respond to the case against them.
• Keep detailed notes and records – Contemporaneous notes should be kept of witness meetings, including meetings with the employee under investigation. Witnesses should be given an opportunity to check the accuracy of their notes. A clear record of the evidence gathered and the reasoning behind decisions can help demonstrate that the process was fair. Where the matter proceeds to a disciplinary hearing, the employee should receive the relevant evidence in advance, allowing reasonable time to prepare a response.
• Maintain appropriate confidentiality – Employers should limit the sharing of information to those who need it and remind participants to handle the matter sensitively. Absolute confidentiality cannot always be guaranteed, particularly where information must be disclosed to ensure a fair process. Witnesses may be reluctant to provide information if they fear their identity will be disclosed. Employers should consider requests for anonymity carefully, balancing any genuine concerns with the employee’s right to understand and challenge the evidence relied upon.
• Consider whether the employee may be accompanied – There is generally no statutory right to be accompanied at an investigation meeting, although an employer’s policy or the circumstances may provide for this. Employees have a statutory right to be accompanied at qualifying disciplinary hearings that could result in a formal warning or other disciplinary action, and at appeal hearings. Reasonable adjustments may also be required for disabled employees.
• Remember that an investigation is not a disciplinary hearing – The purpose of the investigation is to gather evidence and establish the relevant facts. Even if the employee admits the conduct, a formal disciplinary hearing may still be required so they can respond to the allegations, explain the circumstances and raise any mitigating factors before a decision is made.
• Respect the implied duty of trust and confidence – Employers should have a reasonable basis for investigating allegations and avoid using disciplinary proceedings as an unjustified fishing exercise. An unreasonable or bad-faith process may expose the employer to further claims. If the matter reaches an Employment Tribunal, the tribunal will assess the employer’s actions in light of the circumstances and the information available at the time, rather than simply with the benefit of hindsight.

What next after investigation?

At the end of the investigation, the investigator should review the evidence and record their findings and recommendation. A clear explanation of the reasoning, supported by the evidence, can help the employer decide whether formal disciplinary action is justified.

If there is insufficient evidence to proceed, the employee should be informed without unreasonable delay. If there is a case to answer, the employee should be invited to a disciplinary hearing, with the allegations, possible consequences and relevant evidence explained in advance.

Process after formal disciplinary action is taken against an employee

Employees should be informed of their right to appeal a disciplinary decision. The appeal should be handled impartially and, where practicable, by someone who was not involved in the original decision. In smaller businesses, it may be difficult to identify an appropriate person, so employers may need to consider whether an independent person should assist.

A fair and well-documented disciplinary process can help employers make defensible decisions and reduce the risk of successful claims. We can advise on the appropriate procedure, assist with difficult cases and help identify practical solutions that fit your business.