Step 1: Comply with internal disciplinary procedure and the Acas Code
The Acas Code of Practice on Disciplinary and Grievance Procedures sets out minimum standards for conducting a disciplinary procedure. An employment tribunal will take it into account when considering whether or not the employer has acted reasonably - a failure to follow the Code may result in a finding of unfair dismissal. In addition, the tribunal can adjust any compensation by up to 25% if there has been an unreasonable failure to follow the Code.
You should also ensure that you comply with your company's own internal disciplinary procedure.
Step 2: Suspension?
You may wish to consider whether the employee should be suspended to enable a full investigation to take place. Suspension is normally only appropriate in cases of serious misconduct or incompetence, where the employee's continued presence makes the investigation difficult to carry out, where there is a risk that the employee will tamper with evidence or where relationships have broken down and suspension is the only way to avoid conflict in the workplace.
Suspension should be handled carefully as a badly handled suspension may provide the employee with an opportunity to claim constructive dismissal. Suspension should be on full pay, should be as short as possible and should be regularly reviewed and the employee informed of progress, particularly if it is likely to take longer than anticipated.
Step 3: Investigation
It is critical that an investigation takes place prior to any disciplinary action. The employer must carry out such investigation that is reasonable in the circumstances, and it must be sufficient to establish the relevant facts and the substance of the allegations so that (1) these can be put to the employee in sufficient detail to enable a response and (2) the manager conducting any subsequent disciplinary hearing will have enough information to provide them with reasonable grounds on which to base a decision.
The investigation should be fair and balanced and should include looking for evidence that may be in the employee's favour as well as against him or her. An investigatory meeting should normally be held with the employee, who may be able to direct you to evidence (including witnesses) that support his or her case. An investigatory meeting is not a disciplinary meeting (so there is no right to be accompanied) and care should be taken to ensure that it is limited to fact-finding only.
Below is a list of the steps you are likely to need to take as part of the investigation:
- Consider suspension at the outset (see above).
- Interview the employee (see above).
- Interview any witnesses or other employees who are likely to have relevant information about the allegations, and they should be reminded of their duty of confidentiality.
- Notes should be taken of the meetings with the employee and other witnesses.
- Gather any other evidence. This can include e-mail correspondence and documents (whether in hard or soft copy) that are relevant to the allegations.
- Prepare a report of the findings (without judging the outcome), particularly if the investigation has been lengthy and detailed, attaching all the notes, statements and other evidence.
The investigation should not be carried out by the same person who will hold the disciplinary hearing or any appeal meeting unless it is unavoidable.
Step 4: Invitation to a disciplinary meeting
If the outcome of the investigation is that a disciplinary hearing is justified, the employee needs to be invited to a hearing, provided with details of the allegations and the evidence that you intend to rely on at the hearing and be told of his or her right to be accompanied. Unless you have already provided a copy of your disciplinary procedure to the employee at the suspension stage, it is advisable to provide it at this stage.
When you decide on a date for the hearing you should bear in mind that the employee should be given reasonable time to consider the allegations and the evidence and prepare for the hearing.
Step 5: The hearing
The disciplinary hearing should be held in a private meeting room during normal working hours. It should be conducted by an appropriate manager, who is not someone who has conducted the investigation or is a witness or who has otherwise been involved in such a way that they may not be seen as impartial. Please also bear in mind that you should "reserve" a more senior manager, not otherwise involved, to hear any appeal. There should also be a note taker present at the hearing (again ideally someone who has not previously been involved).
Step 6: Sanctions
It is usually considered fair to give two written warnings before deciding to dismiss an employee, except in cases of gross misconduct where employees may be dismissed without any prior warnings (provided the employer can show that immediate dismissal is an appropriate response in the circumstances). When deciding on a sanction (if any), it is appropriate to consider what sanctions have been imposed on other employees for similar conduct and to take account of any "live" warnings on the employee's file. "Spent" warnings should not be taken into account.
Step 7: Appeal
The employee will have the right to appeal against any sanction. As mentioned above, the appeal should be heard by someone who has not previously been involved, is impartial and who is more senior than the manager hearing the disciplinary. The appeal is an opportunity to revisit the whole or parts of the case against the employee (depending on the grounds for the appeal) and a properly conducted appeal can help to ensure that the process as a whole is seen as fair, particularly if there have been any procedural defects at the earlier stages.