Before the disciplinary hearing
Before you can take disciplinary action against an employee, you need to conduct a disciplinary hearing. This is a chance to go through the allegations and give the employee an opportunity to respond.
Your first step is to understand your company’s disciplinary process. The procedure should also comply with the ACAS Code of Practice.
Failure to follow a fair process could lead to an employment tribunal claim or court action. If that happens, seek advice from an employment solicitor as soon as possible.
Generally, disciplinary hearings relate to three issues:
- An employee’s conduct at work
- An employee’s capability to do their job
- An employee taking too much time off work
Next, you need to establish whether the allegations are true and whether there is enough evidence to support them.
Gather evidence as soon as possible. This might include CCTV footage, witness statements, or digital evidence such as emails.
Once you believe you have a case to answer, the employee should be notified of the hearing in writing, either by post, email, or both. The invitation should explain:
- The allegations against the employee
- The date, time, and location of the hearing, including whether it will be held virtually
- Possible disciplinary action, including dismissal where relevant
- A breakdown of the disciplinary process
You should give the employee a reasonable amount of notice so they can prepare and gather their own evidence. Usually, this is around 3 to 5 days, but it may be longer depending on the circumstances.
During the hearing
If possible, the disciplinary hearing should be led by someone who was not involved in the initial investigation. This helps avoid bias when hearing the case and deciding on any disciplinary action.
You should also arrange for a note-taker to record the meeting.
At the start of the hearing, set out the allegations and present the evidence.
The employee then has the right to respond. During this stage, they can present their own evidence and supporting documents to explain their position or challenge the allegations.
For example, an employee accused of misconduct might produce emails from satisfied clients to support their account.
You may then question the employee, and they can question the case against them.
This part of the hearing can become tense, so it is important to remain calm and professional. Any loss of temper could later be used as evidence that the process was flawed or biased.
Employees are also legally allowed to bring a companion. In most cases, this will be a work colleague or union representative. However, you may choose to allow someone else, such as a carer or translator, depending on the employee’s needs.
You would not usually allow the employee to bring legal representation at this stage.
The companion can:
- State the employee’s case at the start and sum up at the end of the hearing
- Respond on behalf of the employee
- Privately discuss the matter with the employee
- Make notes
Unless you agree otherwise, a companion cannot answer questions that are put directly to the employee.
If the employee accepts the allegations, they are still entitled to make a statement in mitigation. For example, they might accept that they could not carry out part of the job but explain that no training was provided.
At the end of the hearing, explain the next steps clearly.
Do not make an immediate decision. Take time to review the evidence, investigate any disputed points, and then decide whether disciplinary action is appropriate.
After the disciplinary hearing
Once the meeting has ended, send an accurate copy of the meeting notes to the employee.
You should then decide what action, if any, to take. Whatever you decide, the employee must be notified in writing and offered the right to appeal.
It may be that you accept the employee’s explanation and end the process. This can happen where there has been an honest mistake or insufficient evidence.
If you do decide to take disciplinary action, you may:
- Give the employee a formal warning
- Suspend or demote them
- End the process without further action
- Dismiss the employee
Your decision should always be fair and proportionate.
If an employee believes the outcome does not match the seriousness of the issue, they may take the matter further.
You may also want to discuss the proposed action with a legal expert to reduce the risk of an unfair dismissal claim.
The employee is legally entitled to appeal your decision. They may do so if they believe:
- The process did not follow company procedure or the ACAS Code of Practice
- Decisions were made without proper evidence
- The outcome is unfair or disproportionate
- They have new evidence or supporting documents to provide
You should advise them to lodge any appeal as soon as possible.
After an employee’s disciplinary appeal
If the employee’s appeal succeeds, they may be able to return to work or have the disciplinary action reduced or changed.
If the appeal is unsuccessful, they may choose to take the matter to an employment tribunal. At that stage, legal advice is strongly recommended.
An employment solicitor can guide you through the process, help you prepare for tribunal proceedings, and assist in resolving the dispute where possible.
Use The Law Superstore’s quick quote form to compare solicitors who can help you resolve employment matters.
What entails the preparation of a disciplinary hearing?
Preparing for a disciplinary hearing involves several key steps to ensure the process is fair and effective.
Start by understanding your company’s disciplinary policy and making sure it aligns with the ACAS Code of Practice. Gather and review all relevant evidence, such as documents, emails, witness statements, or CCTV footage.
You should then notify the employee in writing of the hearing, setting out the allegations, the date, time, and location, and confirming their right to be accompanied.
It is also important to allow enough time for the employee to prepare their response.
Finally, plan how the hearing will be structured, including how the evidence will be presented and how the discussion will be managed.
What are the 5 disciplinary procedures?
The five disciplinary stages commonly referred to in workplace procedures are:
- Informal warning for minor issues before they escalate
- Formal warning in writing for more serious or repeated concerns
- Final written warning for continued or serious misconduct
- Suspension with pay while an investigation is ongoing, where appropriate
- Dismissal for the most serious offences or where previous warnings have not led to improvement
The exact process may vary depending on your disciplinary policy, but any action should always be fair, consistent, and proportionate.
How to prepare for a disciplinary hearing as an initiator?
If you are arranging or leading a disciplinary hearing, preparation is essential.
Begin by reviewing your company’s disciplinary policy and the relevant ACAS guidance. Collect and organise all evidence that supports the allegations.
You should also draft a clear notice of hearing, setting out the allegations, enclosing any evidence to be considered, and confirming the date, time, and venue. The employee should also be told about their right to be accompanied.
Where possible, appoint an impartial person to conduct the hearing. You should also prepare a clear structure for how the case will be presented, how the employee will respond, and what questions may need to be asked.
Do companies have to follow ACAS guidelines?
Following ACAS guidance is not strictly a legal requirement, but it is strongly recommended.
The ACAS Code of Practice provides a recognised framework for fair and transparent disciplinary and grievance procedures.
If an employer fails to follow the Code, an employment tribunal may take that into account when deciding whether the employer acted fairly. In some cases, compensation awarded to an employee can be increased.
For that reason, following ACAS guidance is regarded as best practice whenever dealing with disciplinary matters.