Disciplinary action at work is the employer’s response to proven unacceptable behaviour or performance on the part of an employee, resulting in actions such as suspension or dismissal.
Taking disciplinary action is just one part of the whole disciplinary procedure, and although it may be seen as an end point, it should be dealt with as seriously as all the previous stages of the process.
Disciplinary procedure
The disciplinary procedure at work should be considered in relation to the following steps:
Awareness
The line manager or employer becomes aware that an employee’s behaviour or performance may be unacceptable to an extent that it merits disciplinary action. This may be through the line manager’s measuring of the employee’s performance, such as in a yearly performance review, where another employee raises a complaint against the employee, or when an event at work throws up an obvious conduct problem.
Response to employee
The line manager or employer informs the employee of the issue and tells them what will happen next. Depending on the details and severity of the issue, the employee may remain working throughout the process or where it is concluded that their presence at work could be problematic in any way, such as putting pressure on another employee to lie for them or retract an accusation of bullying, the employee may be suspended from work on full pay.
Investigation
The issue must be investigated in keeping with the employer’s disciplinary procedure, in a manner that is seen to be fair to all concerned and sufficiently extensive to corroborate as much of the evidence gathered as possible. A record of all evidence (HR records, witness statements, CCTV footage, etc) should be made for presentation at the disciplinary meeting.
Preparation for disciplinary meeting
All parties involved – the employer or line manager, the employee, the person who will be accompanying them, an employee who has raised a complaint, etc. – should be given sufficient notice of the meeting to prepare beforehand, whether that is to call witnesses, gather evidence, or decide on questions to ask.
Disciplinary meeting
The purpose of the meeting is for whoever is making the decision on disciplinary action, usually the line manager or employer, to examine all the gathered information and evidence, and question all involved parties, including the accused employee.
The employee must be given a chance to answer the accusation, presenting their own evidence, calling witnesses and asking questions.
Decision
The decision is made on whether the accusation is upheld, and if it is, the level of disciplinary action to take.
Where the accusation is disproved, no further action will be taken against the employee.
Where the decision is made to take disciplinary action, the employee has the right to appeal against the decision.
What are the rights of the employee and obligations of the employer?
The employer’s disciplinary procedure should state the related rights of employees, including:
- the right to be treated fairly and without discrimination
- the right to be treated lawfully
- the right to know that an accusation has been raised against them which will lead to an investigation
- the right to answer any accusation raised against them
- the right to access the related procedures
- the right to be accompanied to a disciplinary meeting
- the right to appeal against any decision made
The employer has obligations during the disciplinary process too, including:
- to treat all employees fairly and without discrimination
- to act within the law, including employment legislation
- to adhere to the disciplinary procedure in place
- to inform any employee of a disciplinary accusation brought against them and allow that employee to respond, and to also make them aware of the possible disciplinary consequences
- to investigate any work-related complaint raised by an employee
- to allow employees to be accompanied to a disciplinary meeting
- to allow employees to appeal against decisions made as a result of a disciplinary meeting
What form can disciplinary action take?
Where the employer decides that the employee’s behaviour merits disciplinary action, the form that disciplinary action takes should always be appropriate, in keeping with the employer’s disciplinary policy and decided on in consideration of how other employees in similar cases have been disciplined.
Forms of disciplinary action at work include:
- informal, verbal warning
- written warning – first or final depending on past unacceptable behaviour on the part of the employee
- suspension
- demotion
- dismissal without notice or pay in lieu of notice
Common mistakes and issues to avoid
When deciding on the correct disciplinary action to take against an employee, what are the common mistakes that employers should avoid?
Disciplinary action that isn’t consistent with the employer’s disciplinary policy
At any stage of the disciplinary process, the line manager or employer must adhere to the disciplinary procedure and policy, including the use of disciplinary action, the form it takes and what level of severity of behaviour is answerable by each form.
For instance, where the policy states that there must be a series of warnings (informal, first, final) before a more severe form of disciplinary action can take place, this must be adhered to.
Equally, introducing a form of disciplinary action that isn’t mentioned in the policy or procedure is not advisable. The employee has a right to be fully informed of the possible consequences of the disciplinary investigation, i.e. the form disciplinary action could take.
Finally, care must be taken when using disciplinary action in response to behaviour or conduct that isn’t covered in the disciplinary policy. The employee could argue that they were unaware that such conduct was unacceptable.
Decision made or influenced by non neutral parties or HR
The responsibility for making the decision on whether disciplinary action is appropriate must be made by the investigating line manager or employer, using the evidence to hand.
The decision must not be made or influenced by a non neutral member of staff, for instance, one who may be implicated in the accused employee’s misconduct.
Any HR involvement should be to provide personnel records and to advise on related legislation and procedures only.
Severity of disciplinary action isn’t reasonable for severity of employee’s behaviour
The employer must be able to demonstrate that the severity of the disciplinary action used is appropriate for the severity of the employee’s behaviour.
Their decision on the form of disciplinary action should take into account:
- the severity of the employee’s unacceptable behaviour
- how damaging the behaviour has been to other employees and to the business
- whether this is the first time this has happened, a repeat occurrence or part of a pattern of behaviour
- the disciplinary procedure
- related legislation and company policies
- what disciplinary action has been previously used for this behaviour in the workforce
- mitigating circumstances that led to the behaviour
- the likelihood that the behaviour will re-occur
- the employee’s attitude, for instance, have they lied to cover up their misconduct, are they sorry for what happened?
As with any part of the disciplinary process, the employer must be seen to treat the employee in a reasonable manner.
Dismissing an employee for gross misconduct without an investigation
Where it seems obvious that an employee has conducted an act of gross misconduct, even where there is police involvement and individuals have been seriously injured, that employee can’t be dismissed without a full investigation that arrives at dismissal as a reasonable and justified course of action.
The disciplinary procedure must always be followed to ensure that every employee is dealt with fairly and legally.
Not informing the employee of the disciplinary decision in writing
Where the decision is made to take disciplinary action against an employee, this must be communicated to them in writing including:
- the form of disciplinary action, e.g. dismissal
- the reasons for the action
- related timelines
- the employee’s right to appeal the decision
Not allowing the employee to appeal
Any employee has the right to appeal against a disciplinary decision made against them at work. They must be made aware of their right to appeal a decision, and they must be allowed to make that appeal if they feel they have been treated unfairly or that any part of the disciplinary process was carried out incorrectly.
Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Anne Morris is the founder and Managing Director of DavidsonMorris. A highly experienced lawyer, she is recognised by Chambers & Partners and the Legal 500 UK as a trusted adviser to multinationals, large corporates and SMEs, delivering strategic immigration and global mobility advice. Anne is also an active commentator on UK immigration and HR matters.
