Disciplinary and dismissal procedures

Topic Index
Overview
Coverage of the Code
Practical steps
Suspensions
Warnings
Overlapping disciplinary and grievance issues
Disciplinary policies and procedures
Resources

Overview

The ACAS Code on Disciplinary and Grievance Procedures covers the disciplining and dismissal of employees.
The main elements of the Code are that:
- employers and employees should raise issues promptly, deal with issues without unreasonable delay and act consistently
- employers should carry out necessary investigations to establish the facts of the case
- employers should inform the employees of the problem and allow them to put their case before any decisions are made
- employers should allow employees to be accompanied at formal disciplinary meetings
- employers should allow employees to appeal any formal decisions
Although the Code is not legally binding, a tribunal can increase or reduce compensation by up to 25% if either the employee or employer unreasonably fails to follow it.
A failure to comply with the Code does not, on its own, make an employer liable but will be taken into account by a tribunal when it assesses whether an employer has acted fairly.
The ACAS Guide, which accompanies the Code, is much longer and gives 'best practice' advice. While a tribunal is not legally required to take account of the Guide, in practice it is likely to be influential.
Tribunals will take into account the size and resources of the employer and will recognise that, in some cases, it will not be practicable for all employers to take all of the steps recommended in the Code.
A dismissal will be held to be unfair if the employer fails to follow a fair procedure, even if that failure has made no difference to the outcome and it would still have dismissed had it followed a fair procedure. Therefore employers must ensure that they act reasonably and dismissals are carried out according to a generally fair procedure.
However, although a dismissal will be held to be unfair if a fair procedure is not followed, the amount of compensation may be reduced to reflect the chance that the employer would have dismissed the employee in any event, even if it had followed a fair procedure (known as the Polkey reduction).

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Coverage of the Code

The Code applies where an employer takes disciplinary action against an employee for misconduct or poor performance. Disciplinary action could include oral/written warnings, a change of role or deduction from pay. It excludes suspension on full pay.
The Code also applies where an employer contemplates dismissal for misconduct or poor performance.
The Code does not apply to dismissals on the grounds of redundancy or the non-renewal of a fixed-term contract (although employers must still act reasonably and fairly in such cases).

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Practical steps

Notify the employee of the disciplinary case to answer and invite him or her to a meeting, in writing. Give the employee sufficient information about the alleged misconduct or poor performance to prepare his or her case, including copies of any written evidence (which may include witness statements).
Hold a meeting with the employee to discuss the problem before deciding whether to proceed with the disciplinary action or dismissal. Give the employee enough time to prepare.
Where practicable, different people should carry out the investigation and disciplinary hearing.
The employee should be allowed to be accompanied at the meeting, by a colleague, trade union representative or official (whether or not the employer recognises the union). Such a companion should be allowed to address the hearing, to put and sum up the employee's case, respond on behalf of the employee to any views expressed at the hearing, and to confer with the employee during the hearing. Employees do not have right to be accompanied at purely investigatory, as opposed to disciplinary, hearings.
The employee should be allowed to state their case and answer allegations. They should have a reasonable opportunity to ask questions, present evidence and call relevant witnesses.
Inform the employee of the outcome of the meeting in writing.
Give employees a right of appeal against any disciplinary decisions.
Remind employees who appeal of their right to be accompanied and ask them to put their grounds of appeal in writing.
An appeal should be heard by a different, and ideally more senior, manager who has not previously been involved.
There are no specific time frames in the Code. No 'unreasonable delay' is the mantra for meetings, decisions or written confirmation of those decisions. As to appeals, the Guide suggests that 5 working days is common practice, although employers are free to set their own time limits.
Notify the employee of the outcome of the appeal, in writing, as soon as possible.
Keep written records of disciplinary and dismissal cases, including notes of any formal meetings. The Code also recommends that records be kept of other issues such as the reasons for any action(s) taken, whether an appeal was lodged, and the outcome of the appeal. Consider giving copies of meeting records to the employee.
If an employee is 'persistently unable or unwilling' to attend a meeting without good cause, the employer can make a decision on the evidence available. But employers should proceed very carefully in such circumstances and err on the side of caution. The employee should be given every chance to attend and any reasons for non-attendance should be thoroughly investigated (including making medical enquiries where appropriate). An employee in such a case must be warned in advance that a decision will be made in their absence.

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Suspensions

The Code suggests that paid suspension may be necessary where working relationships have irretrievably broken down, where there is a risk to company property or other parties (e.g. customers), or where evidence has been tampered with or witnesses intimidated.
Ensure that any period of suspension with pay is as brief as possible and imposed only after careful consideration - and make clear that suspension is not an assumption of guilt.
Suspension without pay can only be used if this is provided for in the contract of employment.

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Warnings

For written warnings, employers should set out in writing the nature of the misconduct/poor performance, the change/improvement needed, and the timescale.
The letter should also set out how long the warning will remain 'live' and the consequences of any further misconduct or failure to improve (e.g. disciplinary action or dismissal).
In exceptional circumstances, the Code states that a warning can remain in force indefinitely, e.g. where a lenient employer agrees to a final written warning for serious misconduct instead of dismissal.
Where a warning has lapsed, employers should be wary of relying on it. Certainly an expired warning should not be relied on to tip the balance where the later misconduct/poor performance is not enough to justify dismissal. But where the later incident itself warrants dismissal, an employer can take into account an expired warning when deciding whether or not to substitute a lesser sanction.

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Overlapping disciplinary and grievance issues

Where an employee raises a grievance during a disciplinary process, the disciplinary process may be temporarily suspended to deal with the grievance.
In circumstances where the grievance and disciplinary issues are related it may be appropriate to deal with them concurrently.
Employers have a certain amount of discretion under the Code to handle overlapping disciplinary and grievance situations in the most appropriate way, depending on the circumstances.

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Disciplinary policies and procedures

Employers should:
- ensure that their disciplinary policies are specific, clear and set down in writing
- involve employees (or their representatives) in the development of disciplinary rules and procedures
- give examples in a disciplinary policy of what they regard as gross misconduct (e.g. theft, physical violence, insubordination) but make sure this is expressed as illustrative only and not a definitive list
- ensure that staff and managers understand what the disciplinary rules and procedures are, where they can be found (e.g. printed copy, in the staff handbook, or on an Intranet) and how they are to be used
- ideally, ask staff to confirm that they have read and understood the policy
- train those responsible for using and operating the rules and procedures, including managers at all levels

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Resources

The Policies and Documents section contains a variety of specimen letters, contract clauses, policies and procedures and line managers' guides covering disciplinary issues (subscribers only).

ACAS