Starting a disciplinary process is rarely straightforward. For employers, taking formal action against an employee can carry legal, financial and reputational risk if handled incorrectly. In England and Wales, employers are expected to follow a fair procedure that aligns with the ACAS Code of Practice on disciplinary and grievance procedures. Employment tribunals will consider whether an employer has followed the Code when assessing fairness in dismissal or misconduct cases, and failure to follow it can result in compensation awards being increased by up to twenty five percent.
This makes preparation essential. Before starting a disciplinary process, employers should take certain steps to ensure that any decision taken is reasonable, proportionate and legally defensible.
Consider Whether Formal Action Is Necessary
Before moving to a formal disciplinary process, employers should assess whether the issue can be resolved informally. ACAS guidance recommends that employers attempt to address concerns through discussion where appropriate, particularly where performance or capability is involved rather than misconduct.
This may include:
• Speaking privately with the employee to understand their perspective
• Clarifying expectations or performance standards
• Offering training or support where capability is an issue
• Agreeing an improvement plan
• Providing mentoring or coaching
Informal resolution can often prevent escalation and maintain a positive working relationship. Employers who rush directly into disciplinary action without exploring alternatives may expose themselves to allegations of procedural unfairness.
Review Internal Policies and Procedures
Employers must ensure that they have a written disciplinary procedure that is accessible to staff. This procedure should clearly explain what constitutes misconduct or poor performance and what action may be taken if workplace rules are breached.
Disciplinary rules are often included within employment contracts or staff handbooks. If they form part of a contractual document, failing to follow them could amount to a breach of contract claim.
Consistency is equally important. Employers should check how similar issues have been handled in the past to ensure that employees are treated fairly across the organisation. Inconsistent treatment of employees facing similar allegations may lead to claims of unfair dismissal or discrimination.
Carry Out a Fair Investigation
A disciplinary process should not begin until a reasonable investigation has been conducted to establish the facts of the situation. The purpose of an investigation is not to reach a conclusion but to determine whether there is a case to answer.
The ACAS Code of Practice states that employers should carry out any necessary investigations before making disciplinary decisions.
This may involve:
• Gathering relevant documents
• Interviewing witnesses
• Reviewing emails or workplace communications
• Examining policies or procedures that may have been breached
Employers should approach the investigation impartially and avoid making assumptions about the outcome. Any personal data obtained during the investigation must be handled confidentially in line with data protection obligations.
Communicate Clearly With the Employee
If, following an investigation, formal action appears justified, the employee should be informed of the concerns in writing. This should include details of the alleged misconduct or performance issue and any potential consequences.
Employees must be given sufficient information and time to prepare for a disciplinary hearing. ACAS guidance states that employers should inform employees of the basis of the problem and provide an opportunity for them to respond before any decision is made.
Employers should also remember that employees have a statutory right to be accompanied at a formal disciplinary meeting by a colleague or trade union representative.
Clear communication throughout the process can help reduce misunderstandings and minimise the risk of grievances or tribunal claims arising later.
Why Preparation Matters
Taking disciplinary action without following a fair procedure can have serious consequences for employers. Employment tribunals will examine whether an employer acted reasonably and complied with the ACAS Code when determining whether a dismissal or warning was fair.
In some cases, procedural errors alone can result in a finding of unfair dismissal even where misconduct occurred. Employers who fail to follow a fair disciplinary process risk increased compensation awards and damage to workplace morale.
Ensuring that concerns are investigated properly, procedures are followed consistently and employees are given an opportunity to respond can significantly reduce the likelihood of legal challenges.
Speak to an Employment Solicitor Before Taking Action
Disciplinary processes can quickly become complex, particularly where allegations involve serious misconduct, discrimination issues or potential dismissal. Seeking legal advice at an early stage can help employers avoid procedural mistakes that may later give rise to claims in the Employment Tribunal.
Penerley’s employment solicitors advise employers across England and Wales on disciplinary procedures, investigations and dismissal decisions. If you are considering taking formal action against an employee, contact our team today for clear and practical legal advice to protect your business and ensure that any disciplinary process is handled fairly and lawfully.
