Disciplinary procedure

2. 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.

Keep talking

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:

• misunderstandings
• 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:

• absence
• mental health problems arising
• existing mental health problems getting worse

Find out more about supporting mental health at work

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.

Find out more about dealing with grievances at work

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.

Find out more about ending employment

3. Step 3: Carrying out an investigation

The employer must carry out an investigation to get as much information as they reasonably can about their employee's alleged misconduct or poor performance.

Read our step by step guide to investigations

4. Step 4: The hearing

Where the investigation shows the employee has a case to answer, the employer should ask them to a disciplinary meeting or 'hearing'. This is a meeting where the employer hears all the evidence before making a decision.

Preparing for the hearing

The hearing should be held as soon as possible after the investigation, while giving reasonable time for the employee to prepare.

In good time before the hearing, the employer should put in writing to the employee:

• the alleged misconduct or performance issue
• any evidence from the investigation
• any other information they plan to talk about
• the date, time and location of the hearing
• information on the employee's right to be accompanied to the hearing
• the possible outcomes

Employers can use our letter templates for giving an employee notice of a disciplinary hearing.

The employee can also bring evidence to the hearing, for example emails, to show and talk about.

The right to be accompanied

By law, an employee or worker can bring a 'companion' (relevant person) with them to a disciplinary hearing. This is called 'the right to be accompanied'.

Who the employee can bring with them

The employee must choose their companion from one of the following:

• someone they work with
• a workplace trade union representative who's certified by their union to act as a companion
• an official employed by a trade union

Under discrimination law, employers must make reasonable adjustments for disabled employees. This might mean allowing someone else to attend, for example a support worker or someone with knowledge of the disability and its effects.

Employers can, but do not have to, allow companions who do not fall within the above categories. For example, some employment contracts might allow for a professional support body, partner or legal representative.

Requesting a companion

If the employee wants to bring a companion, they should make a 'reasonable request' to their employer.

To make a reasonable request, the employee should:

• tell their employer the name of the companion and whether they're a colleague or a trade union representative
• give their employer enough notice, so they can make arrangements for the companion to attend the meeting

The companion should also be given enough time to prepare for the meeting, for example to look at any evidence.

What happens in a disciplinary hearing

The hearing is the chance for both the employer and the employee to state their case. The employer, employee and employee’s companion should make every effort to attend.

The employer should:

• explain the employee's alleged misconduct or performance issue
• go through the evidence
• make sure someone takes notes

The employee should be given the chance to:

• set out their case
• answer any allegations
• ask questions
• show evidence
• call relevant witnesses (with good notice)
• respond to any information given by witnesses
• choose if their companion can speak for them at the hearing

The employee's companion should be allowed to:

• set out the employee's case
• respond for the employee to any comments or points made at the meeting
• talk with the employee during the hearing
• take notes
• sum up the employee's case at the end of the hearing

The employer may agree to allow the companion to answer questions on behalf of the employee. But this is not a legal requirement.

For more details on holding disciplinary hearings, you can use the Acas guide to discipline and grievances at work.

At the end of the hearing

It's a good idea for the employer to take some time after the hearing to consider the case carefully before making a decision.

The employer should:

• tell the employee what happens next and give a timeframe
• take a written confidential record of the hearing

If the employee is absent or off sick

If the employee is absent or off sick for the disciplinary hearing, the employer should pause the disciplinary procedure until they return to work.

If the employee still says they cannot attend or if they go on extended sick leave, the employer should see if it would help to make other arrangements.

If the employee still refuses to or cannot meet, the employer will need to look at the case and come to a reasonable decision.

The employer could look at:

• any rules their organisation has for dealing with failure to attend disciplinary hearings
• how their organisation dealt with similar cases in the past
• the seriousness of the disciplinary issue
• the employee's disciplinary record, general work record, work experience, position and length of service
• getting a medical opinion on whether the employee is fit to attend the hearing (with the employee's permission)

If the employer reaches a decision, they should tell the employee in writing and tell them of their right of appeal.

You can find more details in Appendix 4: Dealing with absence in the Acas guide to discipline and grievances at work.

5. Step 5: Deciding the outcome

After following a fair disciplinary procedure, the employer should decide on the best outcome based on:

• the findings from the investigation and meetings
• what is fair and reasonable
• what their organisation has done in any similar cases before

Each organisation might have its own versions of disciplinary outcomes. They should be written in your organisation's disciplinary policy or guidelines.

For a disciplinary outcome that's not a dismissal, it's a good idea for the employer to give the employee specific goals and timeframes for improvements.

Telling the employee

The employer should tell the employee of the outcome as soon as possible and in writing, for example in a letter or email.

Use our letter templates for giving disciplinary outcomes

If the employee's conduct or performance has not improved in the timeframe set, the employer should repeat the disciplinary procedure until improvements are made or until dismissal is the only fair and reasonable option.

When no action is needed

When it's decided there was no misconduct or performance issue, the employer should end the disciplinary procedure.

To make sure there is no bad feeling, the employer should talk privately with the employee and any other staff who knew the disciplinary procedure was happening.

They should make clear there is no longer anything to worry about and should help the employee get back to work as normal.

It's a good idea for the employer to keep a note of how they carried out the procedure for future reference.

Informal warning

If the misconduct or performance issue was found to be small and not serious, the employer might just have an informal talk with the employee. Your organisation might call it a 'verbal warning'.

It's a good idea for the employer to still keep a confidential written record of informal or verbal warnings for future reference.

Written warnings

A written warning is a formal warning that the employer can give the employee at the end of the disciplinary procedure.

A first or final written warning should say:

• what the misconduct or performance issue is
• the changes needed, with a timescale
• what could happen if the changes are not made
• what could happen if there is further misconduct or no improvement to performance
• how long the warning will stay in place
• in performance cases, any support or training the employer will provide

First written warning

A first written warning is normally the first step an employer will take when misconduct or poor performance is confirmed.

Final written warning

The employer can give a final written warning if, within a set timeframe, the employee either:

• repeats or commits another misconduct
• does not improve performance

In cases of serious misconduct or poor performance, the employer does not have to give a first written warning and can instead go straight to a final written warning. For example, where the employee's actions have, or could, cause serious harm to the business.

If an employee does not meet the requirements of their final written warning in the timeframe set, it could lead to dismissal. The employer should make this clear to the employee.

Taking other disciplinary action

The employer might look at other disciplinary action depending on the seriousness of the misconduct or performance issue.

Employers must first check what the employment contract allows and discuss it fully with the employee. The employee can have their chosen companion or representative with them for this.

You can find more detailed advice on other disciplinary actions in the Acas guide to discipline and grievances at work.

Dismissal

The employer might dismiss the employee (end their contract) in either of these cases:

• gross misconduct – some acts count as 'gross misconduct' because they are very serious or have very serious effects, for example fraud or physical violence
• the disciplinary procedure has had to be repeated and the employee previously had a final written warning

Dismissal should only be decided by a manager who has the authority to do so. You can check your organisation's policy on this.

The employee should be told as soon as possible:

• the reasons for the dismissal
• the date the employment contract will end
• the notice period
• their right of appeal

To avoid the risk of an unfair dismissal claim, the employer should always follow a full and fair disciplinary procedure before deciding on dismissal.

Find out more about dismissals

The employee's right of appeal

The employer should offer the employee the right of appeal.

This is so the employee can raise an appeal if they feel:

• the outcome is too severe
• any stage of the disciplinary procedure was wrong or unfair

Find out more about appealing a disciplinary outcome

6. Step 6: After the disciplinary

After a disciplinary procedure has finished, employers might want to give some information about it to individual staff. It's also important to keep records.

Talking to staff

The disciplinary outcome and details must remain confidential. However, where appropriate, it can be a good idea for the employer to talk privately with any staff who were directly involved with the disciplinary procedure.

Usually this would be to let them know that the process is finished and to remind them not to talk about it with colleagues.

Employers could also tell them about any changes that will be introduced as a result of the process. For example updating a policy or providing training on a particular topic.

This helps to reduce the bad feeling and gossip which can happen when staff are involved in formal procedures.

Keeping a record

No matter what the outcome, employers should keep a written record of all disciplinary cases to help with any questions or similar cases in the future.

In line with data protection law, records should be:

• confidential
• only be kept for as long as necessary

Find out more in the guide to data privacy from the Information Commissioner's Office (ICO)

References after disciplinary action

By law, an employer does not have to provide a reference.

When an employer gives a reference they must make them:

• fair
• accurate
• consistent with others

This means they might have to give information about the employee's disciplinary outcome.

Find out more about references

Get more advice and support

If you need help with a disciplinary case, you can contact the Acas helpline.

Acas also provides:

• training on discipline and grievance
• tailored support for employers