EMPLOYMENT LAW ADVICE - DISCIPLINARY

A guide on disciplinaries at work from the employment law experts

Marjon Law, specialist employment lawyers is owner-led by Marc Jones, who is ranked and recommended in legal publications as a leading employment law solicitor, with over 20 years of experience practising solely in employment law.

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What is a disciplinary?

A disciplinary is part of the process when an employer wants to address an employee’s conduct or capability. The types of conduct and capability can include:

refusal to obey a legitimate instruction
absence without permission
persistent absence
poor timekeeping
failure to carry out work duties adequately
poor work performance
improper use of the employer's equipment
breaches of the employer’s rules, procedures, policies, or practices.

More serious conduct matters are referred to as gross misconduct and can include:

acts of dishonesty where your conduct affects an employee's ability or suitability for continued employment with an employer (eg theft, fraud, the deliberate falsification of time sheets and expenses claim forms or failure to disclose correct information on an application form or CV)
serious insubordination or rudeness to clients, customers or suppliers
deliberate damage to, or misuse of, the employer's property
negligence resulting in financial loss to the employer
serious breaches of health and safety
physical assault or aggressive behaviour
indecent or immoral acts
being under the influence of alcohol or illegal drugs during work hours
breaches of confidentiality (other than minor breaches)
discrimination, harassment and/or bullying
breaches of the employer’s rules, procedures, policies, or practices (other than minor breaches)
bringing the employer or any of its directors or shareholders into serious disrepute.

The word “disciplinary” typically refers to the process, which would normally be:

investigating the allegation(s) against an employee
informing the employee of the allegation(s) against them
holding a disciplinary hearing allowing the employee to respond to the allegation(s) against them
confirming the outcome of the disciplinary in writing
providing an appeal against the disciplinary outcome.

What is a typical disciplinary procedure?

An employer should have a written disciplinary policy or procedure. If not, an employer should follow the Acas code of practice on disciplinary and grievances.

A poorly handled disciplinary process can result in an employment tribunal claim for unfair dismissal.

A typical procedure will:

set out the various levels of disciplinary action (eg informal chat, verbal warning, written warning, final written warning, dismissal, and alternative sanctions to dismissal) and how that stage of the process is reached
describe what behaviour constitutes gross misconduct, which due to its seriousness, would bypass the various levels of disciplinary action and if found proven could lead to dismissal
provide for suspension from work in certain circumstances (eg an allegation of gross misconduct)
set out in writing the allegation(s) against the employee
invite the employee to attend a disciplinary hearing without unreasonable delay
allow the employee to be accompanied to a disciplinary hearing by a work colleague or trade union official
hold a disciplinary hearing with the employee in person or by video (if the employee consents)
carrying out any further investigation into the allegation(s) against the employee
confirm the disciplinary decision in writing
allow the employee to appeal the disciplinary decision.

When can an employer suspend an employee?

The right of an employer to suspend an employee is normally set out in the employee's employment contract or in the employer's staff/employee handbook. Even if there is no right to suspend an employee, providing there is a sufficiently serious reason for doing so and the employee suffers no detriment (eg they continue to receive full pay and other usual benefits) then most employers will have acted reasonably.

The main reasons why an employer may want to suspend an employee are:

to stop the employee from carrying out the conduct that is being alleged
to stop the employee from interacting with other employees or clients/customers of the employer, which may otherwise cause a detrimental impact on the business
to enable the employer to properly investigate the allegation(s) against the employee without any hindrance.

Ultimately it is for an employer to show that it had a reasonable and proper cause to suspend an employee. However, even if an employer can show this, if there is a detrimental impact on the employee, suspension could amount to a breach of the implied term of trust and confidence entitling an employee to resign and claim constructive dismissal.

Suspension should be used with caution, even where an employer has a contractual right to suspend an employee pending an investigation (eg where the evidence against an employee is weak) and alternatives should be considered instead, such as a transfer to a different department or a short period of paid leave.

The suspension should be for the shortest period of time whilst the investigation takes place, and an employee should be updated as to how long the suspension is likely to last. Indeed, the Acas code of practice on disciplinary and grievances states that suspension should be:

as brief as possible
kept under review
not be used as a disciplinary sanction.

If an employer has suspended an employee without any reasonable grounds to do so or takes an inordinate amount of time in carrying out an investigation (without explanation or regular updates to determine if the suspension is still necessary), which would make it impossible for an employee to return to work, this could also amount to a breach of the implied term of trust and confidence entitling an employee to resign and claim constructive dismissal.

Can an employee challenge an employer's decision to suspend them?

Yes, an employee can challenge their suspension if they consider it to be unreasonable and/or raise a formal grievance. However, if there were reasonable grounds to suspend an employee it is unlikely the suspension would be lifted but it will provide a formal basis for the objection. This may be relevant if there are other factors leading to a breach of the implied term of trust and confidence giving rising to a claim of constructive dismissal.

In certain cases, an employee may be able to apply to the civil courts for an injunction to prevent suspension. This would only apply where the suspension is in breach of an employee's contract of employment, or where an employee is in a professional role, and their suspension would be detrimental to their competence and reputation.

What will happen at a disciplinary hearing?

At the disciplinary hearing, the employer will put its case, by presenting evidence in support of the allegations against the employee, which could include documents, emails, messages, and witness statements from colleagues. The employee then has the opportunity to respond to the allegations and put forward their own case and present their own evidence to support their arguments. The employee (or their companion) would normally be permitted to ask any questions and to raise objections to evidence or information provided by the employer.

What happens after the disciplinary hearing?

After considering all the evidence presented, the employer would decide if the allegations are proven, and if so, whether or not any disciplinary action will be taken against the employee (see above). In the absence of a written procedure setting out the various levels of disciplinary action, this could be:

for misconduct - a written warning
for serious misconduct - a final written warning
if the misconduct is repeated despite a 'live' written warning - a final written warning
if the misconduct is repeated despite a 'live' final written warning - dismissal with notice
for gross misconduct - summary dismissal without any prior warnings and no notice.

The decision should be confirmed in writing with a right to appeal the decision.

The material contained in this web page is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.