Disciplinary Action Flowchart
Employment-Law-Compliant Guide to Stages of Disciplinary Procedure
Welcome to Employment Law Clinic’s disciplinary flowchart.
This tool is designed to assist employers in ensuring you properly understand all the steps necessary in dealing with a disciplinary process; if you follow all the steps this should help protect you from having to defend an unfair dismissal – or at least allow you to defend an unfair dismissal effectively, as the guidance complies with the current ACAS Code of Practice on Disciplinary & Grievance Procedures.
Even with guidance, making sure a disciplinary is fair & balanced can be difficult, and you are therefore advised to consider seeking expert assistance before taking any action.
The flowchart provides live links with more details: click on any stage (the ovals) and you will be taken to commentary on that stage in the disciplinary process.
The weight of the lines between the stages signifies the importance of these: light broken arrows mean employers should be considering the action, although it will not often be appropriate; unbroken arrows imply the next stage is essential.
Determine Probable Level of Misconduct
Once the likely level of misconduct has been determined, the employer will be able to determine what action to take next.
The nature of the misconduct will be obvious in some occasions, but as the disciplinary policy will only include the type of conduct that could fall into each category, it will be necessary for an employer to make a reasonable judgement in many cases of suspected misconduct.
These will be determined according to the nature of the company, as some matters may be more important in some workplaces, and a failure to follow these requirements could be more of a disciplinary offence in these circumstances.
Typical examples of misconduct could include:
- Minor (breaches of the rules or required standards, but not of an nature serious enough to warrant dismissal or more formal action initially)
- Poor Time-keeping
- Personal use of telephones, etc
- Regular or unauthorised absences
- Failure to act on a reasonable instruction
- Poor performance
- Serious (breaches of the rules or required standards of a nature serious enough to warrant dismissal in some instances)
- Continued poor performance after appropriate support & training
- Incapability due to drugs or alcohol
- Serious misuse of computers of other equipment
- Repeated incidents of minor misconduct
- Gross (breaches of the rules or required standards of a nature serious enough to warrant dismissal in all instances)
- Serious insubordination
- Theft or Fraud
- Violence or bullying
- Serious breach of confidence
- Serious neglect of health & safety procedures
Repeated offences of minor misconduct may also be treated as serious misconduct. However, it’s important to remember, this is misconduct for which there have been charges brought against the employee – informal action (when formal disciplinary charges are not applied) does not count, and it is only repeated minor misconduct for which charges has been brought when repeated minor misconduct should be treated as serious misconduct.
Appears to be Minor Misconduct
In cases of minor misconduct, it will often be practical & sensible to deal with this informally. This will not lead to any formal action being taken against the employee, and unless there is further misconduct – when a more formal approach should be considered – this issue should not be held against the employee in the future… except of course if there is a repeat offence, the employer should ensure formal action follows.
Employers should be cautious not to use the option of an informal discussion instead of more formal action simply to avoid being too heavy-handed. Formal disciplinary action for minor misconduct is not heavy-handed, and with the appropriate action taken, should a further incident arise the employer will now be ready to consider if this should be escalated to serious misconduct.
Where formal charges are brought against the employee, it will be important that these are still documented & the employee has a clear knowledge of this. Despite the apparent contradiction, even the issuing of a verbal warning should be reiterated in writing – this will simply advise that a verbal warning has been issued, but will not increase the level or status of the disciplinary penalty.
In cases where the employer considers formal action is appropriate, the employer should commence the process by advising the employee of the potential misconduct, and proceed with an appropriate investigation from there. In other cases, the concerns should simply be addressed as part of any good management process, with an informal discussion about the incident.
Address with Informal Discussion
In most cases of minor misconduct, the employee may have had no intention of misconduct, and may not even have realised their actions were misconduct.
Once the area of concern has been identified, it will often be possible to deal with this through appropriate support – for performance or attendance issues, either providing more training or making reasonable adjustments in the workplace that could help improve attendance.
Arrange appropriate support
Whatever the outcome of the disciplinary process – whether summary dismissal (dismissal on the spot), dismissal with notice (serve out the notice period before the dismissal takes effect), a lesser disciplinary penalty, or no disciplinary penalty – the employer has a responsibility to their employee, and should ensure appropriate support is provided.
If you have decided to summarily dismiss, you should ensure the employee is able to gather any personal belongings in a manner that causes the least difficulties. This may involve a supportive approach as they return to their workplace, but as this will often be in full view of colleagues, it would often be better to arrange a quieter time to arrange this if practical.
Employers should take care to ensure the employee is only removing their own property, but you should try to act sensitively in observing any packing the employee finds necessary, as you don’t want to portray any more level of distrust than is appropriate & necessary in the circumstances.
Where dismissal is preceded by notice, the employer should ensure the employee is given appropriate support & responsibilities through the remaining term of their employment – the appointment is continuing, and work appropriate to the contract & grade should continue to be assigned, although this may be restricted where necessary & appropriate to the disciplinary action.
Where a lesser penalty has been issued, if this involves for example a demotion, the employer should help the employee settle into the new role, and adapt to the lack of responsibility or increased management attention associated with this position. In other cases, the employer should remember that disciplinary action is aimed principally at improving performance, and continue to support & promote the necessary improvement in the future conduct of the employee.
If no disciplinary penalty is issued, the employer will still need to acknowledge the difficulties & stress a disciplinary procedure will have had on an employee. It is imperative that the employer provides the necessary support for employees that have been considered for disciplinary action, and ensure they understand the employer needs to investigate suspected offences although this is not an assumption of guilt on the employee by itself.
Appears to be Serious/Gross Misconduct
Cases that appear to be serious or gross misconduct must never be ignored. Equally, it is important for employers not to jump to conclusions or otherwise make assumptions about the perceived misconduct, let alone reach any conclusions about the likely outcome of the case. At this stage, there is a suspicion that the employee’s conduct is inappropriate, but until the matter has been properly looked into, employers should assume nothing, and not determine the acutal, or even likely, outcome.
In the most serious circumstances, employers should consider suspension now, but this will be rare, with a real & genuine risk to the interests of the company suspected.
Advise Employee of Potential Miscondcut
As you have determined that there is possible or probable misconduct, it is only appropriate you alert the employee to this. Natural justice & good employment relations require you to give the employee notice of the issues you suspect they are guilty of; any concerns that this notice will allow an employee to prepare an excuse or otherwise hide the facts, or adjust their conduct should not deter this.
As the notice of suspected disciplinary action is what the investigation will be based on, and the employee’s input will be to comment on this, it is important that this is clear & unambiguous: rather than writing ‘you are being investigated for poor time-keeping’, expand this to provide examples that support this – you apparently arrived at 10:10 on Monday, 1 December, and 10:30 on Tuesday…
The letter should also make clear that this is alleged misconduct – for reasons that may not yet be obvious, it is possible that there will be perfectly reasonable explanations for the conduct. Therefore, you should make clear that this is not a disciplinary charge, but an investigation into a disciplinary matter; a charge will follow if necessary.
In all cases for which you have issued a disciplinary charge, you will then need to conduct an investigation.
During the disciplinary process, employers will need to actively consider whether suspension is appropriate. This decision does not need to be taken at the start of the process, it can be reached at any stage that it seems appropriate, if information comes to light that justifies the same.
Suspension during a disciplinary process is not a disciplinary penalty in itself. It is an option available, normally applied only for gross misconduct, that temporarily removes the employee while disciplinary matters are investigated & the facts determined. As this is not a penalty, employers should normally continue to pay the employee for the time suspended – which should be as brief as possible, and certainly no longer than a week.
A disciplinary investigation does not always need to be exhaustive in its nature, leaving no stone unturned; these should be reasonable, given the nature of the alleged misconduct & all other circumstances.
A charge of minor misconduct will not require an investigation as intense as a charge of gross misconduct, although the employer should still be satisfied they have investigated sufficiently to hold a reasonable view of what happened. A charge of gross misconduct will often require the most intense investigation – this could justify dismissal, even as a first offence, so it’s important the employer has reasonable grounds to support this action – although even then, in some instances this could be brief if the evidence available is strong & the employee does not offer a convincing explanation for their conduct.It is normally preferable wherever possible to have the investigation conducted independently – the manager that will make any decision based on the findings of the investigation should, wherever possible, arrange for another manager or someone external to gather the facts impartially, and present these in a balanced manner: remember, the investigation is intended to gather facts, not make or influence the final decisions.
Once an investigation has been concluded, the employer should decide what action to take against the employee. This will either be to treat the matter as minor misconduct that can be dealt with by an informal discussion; to proceed with disciplinary charges against the employee (in these cases, employers should again consider whether suspension is appropriate); or to conclude that there is insufficient evidence to proceed.
Disciplinary Charges Issued
If an employer holds a reasonably based view that there is a disciplinary charge to answer, the full details of this should be set-out in writing to the employee. The letter should also invite the employee to a disciplinary meeting, and fully explain their rights in regard to this.
A disciplinary meeting should be arranged, wherever possible at a time mutually convenient to all parties. In a small number of cases, the employee will claim all dates/times offered are inconvenient to them, or any companion. In these instances, the employee should suggest a suitable time within a reasonable time-scale (five days is typically fine although this may vary for different circumstances), but where agreement cannot be reached, the employer should set a final date, and advise the employee that the meeting will proceed without them if necessary.
It will be important, even if cases for which the employee does not attend, to proceed with a disciplinary hearing. This will typically involve a minuted record that the managers were present, and considered the investigation & any other information available to them, and also decided whether to proceed on the basis of that, or give the employee a further opportunity to attend a meeting (providing the manager has been flexible & given the employee a reasonable opportunity to attend a meeting, giving a further opportunity will not normally be necessary).
The employer should reach their decision only on the facts of the case, as far as reasonably established. It is important not to allow prejudices or other suspicions to influence the decision-making.
Employers should remember always to act consistently: there will be unique elements to any case, but in cases with predominantly the same issues, any actions or penalty should be similar.
The employer should consider the current record of the employee in making any decision: a disciplinary warning will normally be exhausted after a period of time, so unless current these should not be considered in any decision.
In cases of gross misconduct, the decision may be to dismiss for a first offence. In other cases, dismissal will be exceptional, although it may be appropriate in some circumstances for serious misconduct.
The decision should be reached as promptly as possible after the disciplinary hearing (while taking sufficient time to reflect on anything said at the hearing), and should be advised in writing to the employee.
Disciplinary procedures should always include an opportunity for an appeal, wherever possible to a more senior person than that who took the initial decision; in the smallest companies, this may not be possible, in which case a suitably qualified independent person may be brought in to hear this. Where the same manager needs to hear the appeal, they should act as impartially as possible from their earlier decision.
The appeals process is not an opportunity for the employee to present new evidence, but for the employer to consider whether the original process was fair & reasonable in all the circumstances.
The appeal should be set out in writing, and should give clear details of what is being appealed – the findings, the disciplinary penalty, or both.
Where the findings are being appealed, the main focus of the appeal should be to consider the original disciplinary process, and whether this was reasonable in all the circumstances. If the employer is satisfied this was, the appeal can be dismissed; if there is a reasonable argument that the investigation should have covered more, consideration should be given to upholding the appeal, and arranging a further investigation.
Where the disciplinary penalty is being appealed, the main focus of attention should be whether the original decision was reasonably made & was appropriate in all the circumstances. If this is not to be found so, the original decision should be substituted; otherwise the appeal may be dismissed – although the manager may still reduce the initial penalty if they consider it appropriate in the circumstances of the cases. This will normally be the final outcome in the case, so it is important to ensure you are comfortable with the decision being reached.
The decision from the appeal should be a reasonable one in all the circumstances (the confidence of the management responsible for earlier actions should not undermined, although bringing in a wider perspective & the knowledge of a more senior manager can assist the other manager in their judgement for future cases; overturning a decision on appeal does not mean the original decision was necessarily wrong in the circumstances). This should be reached as soon as possible & notified to the employee in writing.
In cases where a dismissal has been overturned, the employer should consider appropriate support in getting the employee back into their employment with minimum fuss or unnecessary attention.
The employee will have no further appeal internally at this stage, so before this final decision is reached, the employer should satisfy themselves that all procedures have been properly & fully followed; the disciplinary penalty is appropriate in the circumstances; and they would be confident in defending this at an employment tribunal in case the employee elect to take a claim.
The final outcome should never be pre-determined, but will be a decision reached when all the facts have been considered in a balanced manner. After the appeal, it could be the case that the original decision is upheld, the decision is set aside, or the decision is substituted with an alternative decision.
The decision needs to be reached in a reasonable time-scale, but should never be rushed out. Instead, as soon as the appeal has been received, the person due to make the final decision should set-aside sufficient time to consider & absorb all the facts before reaching a decision.
As soon as a decision is reached, this should be put in writing and provided to the employee. Given the difficulties the employee has gone through in this whole process, the employer should be supportive & considerate when delivering this final decision: rather than leave an envelope on the employee’s desk, give notice to the employee of when the decision is likely to be available, and book a meeting to deliver the letter in person. While not legally obligatory, these little steps will at least help to demonstrate that the employer has been considerate in their processes, not crassly reaching decisions & then casually letting the employee know these.
Regardless of the outcome, the employer should continue to be supportive of the employee.
No Further Action
In some instances, your suspicions of misconduct will prove to be unfounded – either the matter of concern was not actually as first perceived, or there were acceptable explanations for this that mean formal disciplinary penalties are not appropriate.
Employers should notify the employee as soon as possible when a conclusion has been reached that no further action is necessary – the employee will often be concerned about the threat of disciplinary action, so as soon as it is known that no further action will be required, this should be communicated to the employee – ideally, you should speak to the employee to advise them of the conclusion but always confirm this in writing.
It will still be important to keep full records of the matter, noting that nothing further occurred as well as the reasons for this decision. Employment tribunals will always look for & expect consistency from employers – you can’t treat one employee differently to another for the same offence and with the same circumstances. Having records to support your decision not to pursue action in any given instance will assist employers in defending their actions, should another employee bring a claim to an employment tribunal – the employer will be able to explain the reasons why the cases were not equal, and why action was justified in one but not another case.