Generally, freelancers and often workers aren’t covered under Disciplinary and Dismissal procedures. However, employees are a different story.
If you or one of your employees is the subject of a disciplinary hearing or dismissal, it’s vital the correct procedures are followed to guarantee a transparent and fair process.
Our Advisors cannot answer employment questions via telephone. If you have a query leave a comment below or call the Acas Helpline on 0300 123 1100.
All employers are required by law, as a minimum, to outline their disciplinary rules and procedures in an employees’ written statement of terms and conditions (which all employees should receive). This written statement can refer staff onto the employers full, written Disciplinary Policy which employers (of any size) are advised to have, and which employees must have access to.
Employers should follow the 2009 ACAS code of practice on disciplinary and grievance procedures which sets out the basic principles that should be followed (see below). In Northern Ireland, the NI Labour Relations Agency has an equivalent code of practice that has been effective from 3rd April 2011; the statutory dispute/disciplinary procedures still apply in Nothern Ireland, too, and must be followed (they were repealed in England, Wales and Scotland in April 2009).
Your employer’s written policy may be contractual (i.e. forms part of your contract) or not.
If your employer has a contractual disciplinary policy but doesn’t follow this, your employer will be in breach of contract. If you’re dismissed without your employer following a contractual disciplinary policy, you can bring a claim for breach of contract in a County Court or High Court, or wrongful dismissal and unfair dismissal in an Employment Tribunal.
If you’re dismissed before you have two years continuous service, you don’t have a right to claim unfair dismissal (unless you have been dismissed for something that is automatically unfair, see more details here), but you may have the right to claim breach of contract if the situation above applies to you. For more details on unfair dismissal see our article here on ‘how your employment can come to an end‘.
Your employer can call any employee to a disciplinary hearing, at any time, if they think you’ve done something wrong (ideally they should talk to you informally first if the circumstances are appropriate). Your employer will use the disciplinary hearing as a way of explaining to you what they think you’ve done wrong and ask for your side of the situation; at the end, they’ll explain what improvement (or other outcomes) there needs to be and if they are taking any action against you (a warning, dismissal, demotion, and so on).
See our article here on the common mistakes that employers make when holding disciplinary meetings. In ‘Should employers fear the office party?‘, we look at the problems that can occur at office parties and other types of misconduct inside and outside of work, and the steps employers should take to handle this.
You can get advice, if you face disciplinary action, from your employers HR/Personnel department or a relevant manager, a union if you’re a member, your local Citizens Advice Bureau (CAB), or by contacting ACAS on 08457 474747.
See our article here about whether you can audio-record disciplinary meetings.
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ACAS code of conduct
The ACAS Code of Practice on Disciplinary and Grievance Procedures provides practical guidance on dealing with disciplinaries for employers in England, Scotland and Wales (in Northern Ireland, the Labour Relations Agency has an equivalent code as Acas does not operate in Northern Ireland). Failure by an employer to follow the code itself does not make the employer liable to Employment Tribunal proceedings.
However, Employment Tribunals will take the code into account and can adjust any awards for unfair dismissal an employee may receive, up or down, depending on if the employee and employer has followed the code or not. An unreasonable failure to follow the code can result in a tribunal increasing awards of compensation to the employee by up to 25%.
The code doesn’t apply to dismissals for redundancy and doesn’t apply to the non-renewal of a fixed term contract. In 2016, it was confirmed in Phoenix House v Stockman that the 25% uplift for non-compliance with the code doesn’t apply to dismissals for SOSR (some other substantial reason), where the breakdown in a working relationship is irretrievable and following some parts of the code would be inappropriate.
The code also covers how people who are ill or disabled are treated when dismissed by their employer because of their incapacity (for more information see our advice on Equal Opportunities and Disability and our advice on How Your Employment Can Come to an End). In 2016 in Holmes v Qinetiq Limited, the Employment Appeal Tribunal confirmed that dismissals, where poor performance is a result of genuine illness, also won’t be covered by the code.
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Details of the code
The ACAS code lays out a number of different steps that should be taken to thoroughly, professionally, and ethically determine whether misconduct has taken place, and how any misconduct should be handled. We’ll be taking you through each of the steps below.
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Step one: Establish the facts
It’s important for the employer to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. In some cases, this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing.
For a misconduct dismissal to be fair, an employer has to show that at the time of the dismissal it believed the employee to be guilty of misconduct and that it had reasonable grounds for believing this, having carried out “as much investigation into the matter as was reasonable in all the circumstances”.
Williams v Leeds United Football Club
In the 2015 case of Williams v Leeds United Football Club, the High Court found that, in principle, there’s no limit on the length of time that can pass between an employee’s gross misconduct and their dismissal without notice, if the employer was unaware of the employee’s wrongdoing during that time. (This was a breach of contract/wrongful dismissal claim and not a tribunal/unfair dismissal claim.)
In 2013 the football club carried out a senior management restructuring and Mr Williams was given three months notice of redundancy. A day later the Club wrote to Mr Williams requiring him to attend a disciplinary hearing where he was accused of gross misconduct for emailing pictures set in the showers of the football Club which they said were ‘hardcore pornography’ – the email had been forwarded from Mr Williams work email account to a friend 5.5 years before.
The Club relied on a breakdown in trust and confidence in Mr Williams to justify his summary dismissal. However, the Club had decided to investigate Mr Williams and other managers, before the initial notice of termination for redundancy, to find evidence to justify their dismissal for gross misconduct in order to avoid responsibility for redundancy payments and notice, and hired a firm of forensic investigators to do this. The case was complicated and fact-specific but the Court dismissed Mr Williams claim for wrongful dismissal and damages.
Rules of investigation
There are no ‘rules’ as to the level of investigation the employer should conduct into the employee’s suspected misconduct, it’ll depend on the particular circumstances. However, the investigation should take place prior to any disciplinary action and the following points need to be considered when carrying out the investigation:
- Identify the allegation to be investigated. Where there are several strands or line of defence to be investigated, it may not be necessary for the employer to investigate each, as long as their investigation is reasonable
- The investigating ‘officer’ must have no previous involvement in, or knowledge of, the matter, if at all possible; and should keep an open mind; and conduct the investigation as quickly as possible
- The ‘accused’ employee and witnesses need to be interviewed (not all witnesses need to be interviewed if a fact has been clearly established)
- Keep notes/records of the investigation meeting. Ask the witnesses if they agree that the notes are a true reflection of the conversation. Advise witnesses of their duty of confidentiality
- An investigation report should be drawn up which sets out a summary of the evidence, including any inconsistencies. This report should not draw any conclusions, that is the role of the disciplinary panel. Although the investigator may have the remit to recommend whether the matter should proceed to a disciplinary hearing or not.
Employers should try not to rely on evidence from only one person/witness but look for other corroborative evidence if this is possible
If there’s an investigatory meeting, this shouldn’t by itself result in any disciplinary action. Although there’s no statutory right for an employee to be accompanied at a formal investigatory meeting, such a right may be allowed under an employer’s own procedure
In cases where a period of suspension with pay is considered necessary, this period should be as brief as possible. The reason for the suspension should be explained, the period should be kept under review and it should be made clear that this suspension isn’t considered a disciplinary action. Suspension shouldn’t be without pay unless there is a contractual right to do this.
In 2015, the High Court confirmed that suspension is a very serious measure that can have serious future consequences for the employee in terms of his/her reputation, so it’ll normally only be justified where it:
- prevents the repetition of the action/conduct that is under investigation
- prevents interference with evidence
- protects any other people at risk from such conduct
- protects the business reputation of the employer where other parties doing business with the employer knows about the conduct.
The High Court were not happy that the employer may be ‘sending a message’ to other employees that this type of conduct would not be tolerated.
Acas updated their guide to suspension in July 2018 which you can read here; with regard to suspension as part of a disciplinary procedure they say:
- Suspension should never be an automatic approach for an employer when dealing with a potential disciplinary matter
- Most disciplinary procedures will not require suspension. An employee will usually be able to continue doing their normal role while the matter is investigated.
Suspension should usually only be considered if there is a serious allegation of misconduct and:
- working relationships have severely broken down
- the employee could tamper with evidence, influence witnesses and/or sway the investigation into the allegation
- there is a risk to other employees, property or customers
- the employee is the subject of criminal proceedings which may affect whether they can do their job.
An employer considering suspending an employee should think carefully if there is an alternative to suspension and consider all other options. If an employer gets it wrong, and the suspension is unlawful, an employee may be able to claim constructive dismissal and can also make claims for the psychiatric harm that will arise from the suspension.
Agoreyo v Lambeth BC 2019
In 2019, in Agoreyo v Lambeth BC, the Court of Appeal confirmed that an employee can only be suspended lawfully where there is “reasonable and proper cause to do so”. Miss Agoreyo was a school teacher with 15 years experience. She was suspended after being accused of using physical force against one of two pupils who had behavioural issues. The School did not appear to make any effort to ask Miss A about the allegations before suspending her, or did not consider any alternatives to suspension.
After being told of her suspension Miss A resigned the same day and bought a claim for breach of the implied term of trust and confidence. The County Court held that the implied term was not breached by the school’s decision to suspend her, as it was entitled to suspend her given the allegations against her. The High Court later disagreed saying the suspension was a ‘knee-jerk’ reaction and that an employee could only be suspended when there was “reasonable and proper cause” to do so.
The Court of Appeal agreed with this test but said the original County Court decision was correct – there was reasonable and proper cause to suspend her as for the School the need to protect the children was paramount. The Court of Appeal emphasised that suspensions must be assessed on a case by case basis.
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Step two: Inform the employee
If it’s decided that there’s a disciplinary case to answer, the employee should be notified of this in writing. This notification should contain sufficient information about the alleged misconduct or poor performance and its possible consequences (i.e. the outcome, any disciplinary sanction) to enable the employee to prepare to answer the case at a disciplinary meeting.
It would normally be appropriate to provide copies of any written evidence, which may include any witness statements, with the notification.
It shouldn’t be a surprise to the employee later on that dismissal is a possibility. The notification should also give details of the time and venue for the disciplinary meeting and advise the employee of their right to be accompanied at the meeting.
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Step three: Hold a meeting
With the employee now made aware of the misconduct claims and the procedures the employer has taken, the next step is the misconduct meeting. The meeting should be held without unreasonable delay whilst allowing the employee reasonable time to prepare their case.
Employers and employees (and their companions) should make every effort to attend the meeting. It can be common for employees to go off sick when they’re suspended or asked to attend a disciplinary hearing, although this isn’t advised unless it’s of course genuine. An employer doesn’t need to indefinitely delay an employees disciplinary hearing because of sickness, but should look at all the facts – they need to distinguish whether someone is fit to attend to attend the hearing, to submit a defence, and understand the allegations made against them. Employers should also consider the reasons for the sickness and whether this is a short or long illness.
At the meeting, the employer should explain the complaint against the employee and go through the evidence that has been gathered. The employee should be allowed to set out their case and answer any allegations that have been made. The employee should also be given a reasonable opportunity to ask questions, present evidence and call relevant witnesses. They should also be given an opportunity to raise points about any information provided by witnesses. Where an employer or employee intends to call relevant witnesses, they should give advance notice that they intend to do this
The employer should be consistent in what it’s accusing the employee of and disciplinary sanctions should only be imposed in respect of allegations that have been properly investigated and brought to the employee’s attention.
See our article on the common mistakes that employers make when holding disciplinary meetings, and our article about whether you can audio-record disciplinary meetings.
Allowing the employee to be accompanied
Workers have a statutory right to be accompanied by a companion where the disciplinary meeting could result in a formal warning being issued; or the taking of some other disciplinary action; or the confirmation of a warning or some other disciplinary action (appeal hearings).
The chosen companion may be a fellow worker, a trade union representative, or an official employed by a trade union. A trade union representative who isn’t an employed official must have been certified by their union as being competent to accompany a worker.
Employees exercising the statutory right to be accompanied at a disciplinary or grievance hearing are entitled to have present whomever they choose, provided the individual is a relevant union representative or work colleague. Employers can’t refuse a particular companion on the grounds that their presence is ‘unreasonable’ – the ‘reasonable’ requirement doesn’t extend to the identity of the companion. The ACAS code was updated in 2015 to reflect this ruling, which you can read more about here.
The companion should be allowed to address the hearing to put and sum up the worker’s case, respond on behalf of the worker to any views expressed at the meeting and confer with the worker during the hearing. The companion doesn’t, however, have the right to answer questions on the worker’s behalf, address the hearing if the worker does not wish it or prevent the employer from explaining their case.
Since 2008, there have been several cases where employees have sought to assert a right to have other representatives with them at a disciplinary hearing, other than a work colleague or trade union rep, i.e proper legal representation. This has been common where the individuals’ ability to work in a chosen profession is at stake by their potential dismissal.
Talon Engineering Ltd v Mrs V Smith 2018
In Talon Engineering Ltd v Mrs V Smith, in August 2018, the Employment Appeal Tribunal found that Mrs Smith was unfairly dismissed (after referring to her colleague as a ‘knob head’ in several e-mails!) because of the employers refusal to postpone her disciplinary hearing a second time because her union representative could not attend. The first disciplinary hearing was postponed as Mrs Smith was unwell and had a holiday booked. The hearing was rearranged but her trade union rep was unavailable on that date, but Talon would not postpone the hearing again. Mrs Smith refused to attend the hearing so Talon conducted the hearing without her and she was dismissed without notice. She unsuccessfully appealed the decision.
The original Tribunal said that no reasonable employer would have dismissed her and she won her claim. Talon Engineering appealed but the EAT said the Tribunal’s decision was correct when it said the company had behaved in an “entitled and hasty” way.
Kulkarni v Milton Keynes Hospital NHS
In Kulkarni v Milton Keynes Hospital NHS Trust and Secretary of State for Health, the Court of Appeal held that an NHS doctor subject to disciplinary proceedings was entitled to be represented at any disciplinary hearing by a qualified lawyer instructed by a medical protection organisation. A key factor here was that doctors employed by the NHS are contractually entitled to be represented by a qualified lawyer at disciplinary hearings that are held on grounds of capability or conduct.
Stevens v University of Birmingham 2015
In Stevens v University of Birmingham, in 2015, the employee, a clinical professor, faced very serious allegations about his clinical trials. The employer refused the employee’s request to be accompanied at an investigation meeting by a person of his choice (who was not a work colleague or a trade union official, and while not a qualified lawyer, the person did have a legal education and was a member of a medical defence organisation).
Stevens decided that the refusal to allow his choice of person was a breach of contract and the High Court agreed. The Court held that refusing the claimant’s request to be accompanied by this person, who understood the technical issues surrounding the clinical trial and had been involved in supporting him when the allegations were first made, was a breach of the implied term of trust and confidence inherent in the contract of employment between the claimant and the university.
There were several reasons for this decision, but an important one was that the claimant did not have an appropriate alternative person to ask to attend the investigation meeting with him, which could ultimately lead to him losing both his job at the university and his registration as a doctor.
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Step four: Decide on appropriate action
After the meeting, the employer must decide whether or not disciplinary or any other action is justified and must inform the employee of their decision in writing.
Where misconduct is confirmed or the employee is found to be performing unsatisfactorily, it’s usual to give the employee a written warning. A further act of misconduct or failure to improve performance within a set period would normally result in a final written warning.
If an employee’s first misconduct or unsatisfactory performance is sufficiently serious, it may be appropriate to move directly to a final written warning. This might occur where the employee’s actions have had, or are liable to have, a serious or harmful impact on the organisation.
A first or final written warning should set out the nature of the misconduct or poor performance and the change in behaviour or improvement in performance required (with the required timescale). The employee should be told how long the warning will remain current. The employee should be informed of the consequences of further misconduct, or failure to improve performance, within the set period following a final warning. For instance, it may result in dismissal or some other contractual penalty such as demotion or loss of seniority.
A decision to dismiss should only be taken by a manager who has the authority to do so. The employee should be informed as soon as possible of the reasons for the dismissal, the date on which the employment contract will end, the appropriate period of notice and their right of appeal.
Previous written warnings that are still ‘live’ may be taken account in the final decision to dismiss. A Tribunal will look to see if it was reasonable for the employer to treat the ‘new’ misconduct together with the ‘old’ (still live) warnings together, as a sufficient reason to dismiss. On occasions expired warnings may be taken into account – see our advice about previous warnings and warnings given in ‘bad faith’ here.
Some acts, termed gross misconduct, are so serious in themselves or have such serious consequences that they may call for dismissal without notice for a first offence. But a fair disciplinary process should always be followed, before dismissing an employee for gross misconduct.
There are no national guidelines to determine what gross misconduct is – each employer will have behaviours which they won’t tolerate at work, depending on the employer, the nature of the work and type of workplace. These behaviours should be written down in the Employer’s Disciplinary Procedure. The action must be so serious that it irrevocably destroys any trust and confidence on the employers’ part that it has in the employee, and can include things such as theft or fraud, physical violence, discrimination/harassment/bullying, gross negligence, serious insubordination and so on.
For a misconduct dismissal to be fair an employer has to show that at the time of the dismissal it believed the employee to be guilty of misconduct and that it had reasonable grounds for believing this, having carried out “as much investigation into the matter as was reasonable in all the circumstances”. The conduct itself must also be sufficiently serious.
Dismissal may not always be the right penalty for gross misconduct. Tribunals will want to to see that the employer considered whether or not dismissal for that misconduct was a reasonable sanction: did it fall within a range of reasonable options available to the employer? Employers need to consider the mitigating circumstances, which include the employee’s explanation of their conduct, their length of service and previous disciplinary record, the employee’s usual conduct and behaviour, the consistency of treatment between employees and the effect of dismissal on the particular employee. Other sanctions, short of dismissal, could be a demotion, a final written warning with training and so on.
Where an employee is persistently unable or unwilling to attend a disciplinary meeting without good cause, the employer can make a decision on the evidence available to it, without the employee attending the hearing.
There have been several cases where the Tribunal looked at the appropriateness of using external HR Consultants during the disciplinary process, where the employer is small and doesn’t have sufficient staff to hear the disciplinary/appeal or conduct the investigation or needs professional advice, and Tribunals take the general view this is acceptable as long as it is made clear who makes the final decision to dismiss and that the decision is made appropriately.
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Step five: Provide the opportunity to appeal
Where an employee feels that disciplinary action taken against them is wrong or unjust, they should appeal against the decision. Appeals should be heard without unreasonable delay and ideally at an agreed time and place. Employees should let employers know the grounds for their appeal in writing.
The appeal should be dealt with impartially and, wherever possible, by a manager who hasn’t previously been involved in the case.
Workers have a statutory right to be accompanied at appeal hearings (as above). Employees should be informed in writing of the results of the appeal hearing as soon as possible.
In the case of Salmon v Castlebeck Care in January 2015 the Employment Appeal Tribunal found that where an appeal had been successful (for the employee) this would automatically reinstate the contract of employment (so it would be as if the employee had not been dismissed).
If an employer wishes to increase a disciplinary sanction on appeal, it can only do so if this is explicitly stated in the disciplinary policy and the employee must be allowed a further right of appeal.
It’s also important that clear records are kept of the whole disciplinary process.
Our Advisors cannot answer employment questions via telephone. If you have a query leave a comment below or call the Acas Helpline on 0300 123 1100.
If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to Lesley at The HR Kiosk – a Human Resources Consultancy for small businesses – our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.
Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.