Checklist: Carrying out a disciplinary process (UK)

Introduction

This checklist provides in-house counsel, private practice lawyers and human resource professionals with guidance on carrying out a disciplinary process when dismissing an employee for misconduct in England, Wales and Scotland (GB). This checklist does not apply to Northern Ireland, where employment law is devolved to the Northern Ireland assembly.

This checklist addresses the following steps:

1. Carry out preliminary steps
2. Carry out a disciplinary investigation
3. Hold a disciplinary hearing
4. Allow the employee a right of appeal
5. Deal with issues that may arise during the process

This guide can be read in conjunction with How-to guides: Overview of employment law, How to carry out a fair termination of employment and How to carry out a fair dismissal on the grounds of SOSR.

Employers should be aware that the Employment Rights Bill 2024, introduced on 10 October 2024, aims to significantly enhance worker protections in the UK. Key provisions include granting day-one rights for unfair dismissal, paternity, parental, and bereavement leave, changes to sick pay and flexible working rights, protections against zero-hours contracts and restrictions on the use of ‘fire and rehire’ practices. New legislation will be introduced throughout 2025 and 2026. Further information can be found at UK Parliament: Employment rights bill and Employment Rights Bill: factsheets.

Step 1 – Carry out preliminary steps

Step 2 – Carry out a disciplinary investigation

Step 3 – Hold a disciplinary hearing

Step 4 – Allow the employee a right of appeal

Step 5 – Deal with issues that may arise during the process

Explanatory notes

There is no statutory requirement for employers in GB to carry out a specific form of disciplinary process before dismissing an employee for misconduct or imposing another disciplinary sanction. However, failing to do so can expose employers to a number of significant legal risks. The information provided in this Checklist represents best practice guidance for employers when carrying out a disciplinary process. While some exceptions to the principles set out in this Checklist can be found in case law, in particular in relation to dismissals of senior level employees, the steps set out below will be relevant to the majority of conduct-related dismissals.

Legal framework

Ordinary unfair dismissal

It is not possible for employers in GB to lawfully dismiss an employee without:

• establishing a fair reason – this must be one of the five potentially fair reasons set out in the Employment Rights Act 1996 (ERA 1996), which are conduct, capability, redundancy, illegality and some other substantial reason (SOSR); and
• following a fair procedure.

(section 98, ERA 1996.)

Conduct dismissals and the range of reasonable responses test

When an employer is seeking to dismiss an employee and to rely on ‘a reason related to conduct’ as its fair reason, the employer should carry out a disciplinary process in order to satisfy the ‘fair procedure’ element of the statutory requirement.

Case law has established that, when considering whether an employer has unfairly dismissed an employee under section 98, ERA 1996, an employment tribunal must objectively determine whether the dismissal was within the ‘range of reasonable responses’ available to the employer. The impact of this is that an employment tribunal is not able to substitute its own view for that of the employer but must consider the decision against the objective standards of a hypothetical reasonable employer. The range of reasonable responses test relates to both the reasonableness of the sanction of dismissal and also to the reasonableness of the procedure carried outby the employer prior to dismissal.

Automatic unfair dismissal

A dismissal for one of the reasons specified in sections 98B to 104G, ERA 1996 is automatically unfair. If a dismissal is for an automatically unfair reason, the employee does not have to prove that the employer behaved unreasonably or failed to follow a fair procedure in order to bring a successful unfair dismissal claim. Examples of automatic unfair dismissal include dismissals for making a protected disclosure (ie, whistleblowing) and dismissals connected to pregnancy, childbirth and maternity.

For further information about whistleblowing, see Understanding the legal protections for whistleblowers.

Discrimination

Employers operating in GB are subject to the requirements of the Equality Act 2010 (EqA 2010), which specifies a number of ways in which an employer might discriminate against an employee on the basis of one of the nine protected characteristics specified in the EqA 2010.

An employee who has been dismissed, demoted or given a disciplinary warning, may allege that this was both unfair, in the sense of a claim under the ERA 1996, and due to discrimination on the part of the employer. An employer who has carried out a proper disciplinary process will have a far greater chance of successfully defending such allegations.

For further information about unfair dismissal generally, see How-to guide: How to carry out a fair termination of employment.

For further information about discrimination, see How-to guide: Overview of workplace discrimination and harassment law and Quick view: Protected characteristics under the Equality Act 2010.

Claims

Employers who take disciplinary action on the grounds of misconduct, up to and including dismissal, without first carrying out a fair and reasonable disciplinary process are therefore exposed to:

• allegations of unfair dismissal – this could be either ordinary unfair dismissal or automatic unfair dismissal, or both;
• claims for constructive dismissal – if the employee were to receive a warning, they may resign and claim they were forced out, or were forced to leave during the process claiming it was unreasonable; and
• allegations of discrimination.

Ordinary unfair dismissal claims can lead to remedies, including an order for reinstatement and payment of compensation (comprised of a ‘basic award’ and a ‘compensatory award’ that may be subject to a statutory cap). Employees must normally have two years’ continuous employment with an employer in order to bring an ordinary unfair dismissal claim (although note that this is due to change as a result of the Employment Rights Bill), and therefore some employers choose to dispense with a dismissal procedure for any employee who does not meet this qualifying threshold. However, many employers carry out a dismissal procedure for all employees regardless of length of service, for a number of reasons, including:

• to provide a defence to discrimination or automatic unfair dismissal claims, neither of which have a minimum qualifying period; and
• to follow a fair process for all dismissals regardless of service, so as to ensure a fair and transparent workplace.

There is no qualifying period of employment or service for a discrimination claim, nor for any of the automatic unfair dismissal claims bar one. There is no cap on the compensation a tribunal can award for a discrimination claim or for certain automatic unfair dismissal claims.

Step 1 – Carry out preliminary steps

A disciplinary process should be carried out when an employer suspects that an employee has engaged in some kind of misconduct. This potential misconduct might be observed or suspected by the employee’s supervisors or may be raised in a complaint from another employee, a customer, supplier or member of the public.

1.1 Consider whether the allegations amount to potential misconduct

Misconduct can take many forms, ranging from serious issues such as theft or assault (usually considered gross misconduct – see Step 1.5 below), to more minor issues such as poor timekeeping. When considering whether allegations of misconduct are appropriate, employers should consider in particular the possibility that the concern is one relating to performance or capability, rather than conduct. For example, an employee who repeatedly fails to meet performance targets might have an issue with capability rather than conduct, unless the employer has reason to suspect that the failures are due to deliberate inaction on the part of the employee. Most employers have a separate performance management process for dealing with capability concerns, although some employers will deal with both conduct and capability under a disciplinary process (an approach endorsed by the Advisory, Conciliation and Arbitration Service (Acas).

Employers only need to carry out a disciplinary process in relation to employees, and not in respect of workers or independent contractors, as only employees have statutory unfair dismissal rights. However, organisations will often carry out some form of fact-finding investigation prior to terminating their relationship with a worker or contractor due to conduct or performance concerns, in order to protect the organisation from allegations of discrimination and breach of contract.

Employers should also be aware that the Public Interest Disclosure Act 1998 protects the widely defined category of worker (as defined in section 43K(1)(a)(ii), ERA 1996) from being subjected to a detriment on the grounds that they have made a protected disclosure (ie, blown the whistle). As a ‘detriment’ can include a dismissal or other termination of contract, carrying out a process prior to dismissing this wider category of workers can therefore protect employers from whistleblowing claims.

For further information about different types of employment status see Checklist: Determining the difference between an employer, a worker and an independent contractor.

1.2 Review the organisation’s disciplinary policy

Most employers have a disciplinary policy (sometimes called a disciplinary procedure) in place, which is usually located within a staff handbook or on the employer’s intranet. The disciplinary policy should be consulted at the outset of any disciplinary process and followed throughout.

1.3 Consider the Acas Code

The Acas Code of Practice on disciplinary and grievance procedures (Acas Code) sets out the minimum process an employer should follow when carrying out a disciplinary process. If an employer fails to follow the Acas Code and the employee subsequently issues employment tribunal proceedings, any award of compensation made to the employee may be uplifted by up to 25 per cent.

Any disciplinary policy the employer has in place should comply with the Acas Code and if it does not, it should be amended to reflect the standards in the Acas Code.

1.4 Check for any other relevant documents or requirements

Before commencing a disciplinary process, the employer should establish whether there are any other requirements it must follow (eg, due to a clause in the employee’s contract of employment, or a collective agreement with a recognised trade union). It is particularly important to check whether there is a contractual disciplinary policy in place – if there is, an employee could seek an injunction to prevent any disciplinary process being carried out in breach of this policy.

For further information on employment policies and their legal status, see Checklist: Drafting a staff handbook.

1.5 Frame the allegations

A common mistake employers make during a disciplinary process is failing to properly frame the disciplinary allegations at the outset. Employers should carefully identify what the employee is accused of, and in addition should identify whether the allegations amount to potential misconduct or gross misconduct. Gross misconduct is misconduct so serious that it goes to the root of the employment relationship and entitles the employer to dismiss the employee without notice or payment in lieu of notice. When framing the allegations, the employer should take care to link the allegations to any examples of misconduct or gross misconduct in its disciplinary policy, contract of employment or any other employment policy, code of conduct or organisation values.

1.6 Communicate with the employee

An employee who is subject to a disciplinary process should be informed of this at an early stage. Best practice is for the employer (usually the employee’s line manager or a human resources (HR) representative, or both) to meet with the employee and then follow up in writing, and to provide the following information:

• details of the disciplinary allegations;
• information about what will happen next (ie, an investigation will take place);
• a copy of the employer’s disciplinary policy or details of where to find it;
• details of any measures that will be in place during the disciplinary process, such as suspension, amended duties, or restricted access to employer premises or systems; and
• information about what could happen if the allegations are found to be substantiated. If the allegations are being treated as potential gross misconduct, the employee should be informed that the outcome might be their dismissal with immediate effect.

1.7 Consider suspension or other measures

In some situations, it will be reasonable for the employer to suspend the employee from their role while a disciplinary process is ongoing (eg, the employer is concerned that the employee will tamper with evidence or intimidate witnesses, or the alleged misconduct is so severe that the employer has concerns about allowing the employee to continue with their role until the disciplinary process has concluded). However, employers should take care when suspending employees as case law has established that suspension must not be a ‘knee-jerk reaction’ by the employer and that the employer must have ‘reasonable and proper cause’ for suspension (see Agoreyo v London Borough of Lambeth [2019] EWCA Civ 322). The reasoning for the suspension must be clearly set out in writing and the employee should be informed that suspension is not, of itself, a disciplinary sanction

Alternatives to suspension might involve placing the employee on alternate duties or requiring them to work from a different location while the disciplinary process is ongoing. Employers should ensure that they have the contractual right to suspend an employee or place them on alternate duties before doing so.

Acas provides detailed guidance on suspension on its website.

Step 2 – Carry out a disciplinary investigation

Employers should carry out some form of investigation prior to holding a disciplinary hearing. The requirements of the investigation will vary greatly depending upon the nature and severity of the alleged misconduct. For example, a disciplinary investigation for poor timekeeping may simply involve collating the employee’s arrival times during the applicable period and giving the employee a chance to put forward any extenuating circumstances.

Investigations into more serious misconduct allegations will likely require some or all of the steps set out below.

2.1 Appoint an investigator

For less serious disciplinary investigations, the employee’s line manager might carry out the investigation. In more serious cases, an impartial individual may be appointed to carry out the investigation, which is usually either a management level employee from within the employer’s workforce or an external investigator such as a HR consultant.

The investigator should be supported throughout the process by a HR representative, whose role is to guide the investigator on process, take minutes of interviews and assist with administrative tasks such as arranging interviews or accessing evidence. The HR representative should not, however, take part in the decision-making process.

2.2 Interview the employee

The investigator should carry out an interview with the accused employee. In some cases, it will be necessary to carry out a number of interviews with the employee in order to allow them the opportunity to comment on evidence that has been gathered during the investigation.

A note taker (usually a HR representative) should be present during any interviews and the employee should be asked to read, confirm and sign the notes following the interview.

2.3 Interview any witnesses

The investigator should carry out interviews with any relevant witnesses. Witnesses might be identified by the accused employee, or by the investigator through their review of other evidence. In most cases, witnesses will be other employees of the employer, although in some cases it might be necessary for the investigator to speak to external parties such as suppliers or customers.

The investigator will need to carry out a balancing act when deciding who to interview, weighing the need to get to the facts of the matter against the need to keep the matter reasonably confidential. When interviewing witnesses the investigator should take care to only disclose to the witnesses such information necessary to allow them to answer the investigator’s questions.

A note taker should be present during any interviews and the witnesses should be asked to read, confirm and sign the notes following the interview.

2.4 Gather and review relevant documents and other evidence

In addition to witness evidence, the investigator may need to review other evidence, such as:

• emails, text messages, online chat messages or other forms of written communication;
• photographs, CCTV or other recorded evidence;
• social media posts relevant to the allegations; and
• other documentary evidence relevant to the allegations (eg, stock take or financial records in the case of allegations of theft).

2.5 Prepare an investigation report

The investigator should prepare an investigation report setting out the evidence gathered during the investigation. An investigation report will usually include a summary of the evidence gathered, together with appendices of the witness interviews and any other evidence. An investigation report should not offer any opinion about the disciplinary outcome or sanction. The investigator’s role is one of fact-finding and the decision-making element is left to the disciplinary chair.

In some cases, an employer’s process provides for the investigator to make a recommendation that the matter should proceed to a disciplinary hearing. Other employers allocate responsibility for this decision to another role, such as the accused employee’s line manager.

Step 3 – Hold a disciplinary hearing

If the conclusion of the disciplinary investigation is that the matter should proceed to a disciplinary hearing, the steps set out in this section should be followed. A disciplinary hearing is sometimes referred to as a ‘disciplinary meeting’ (including the Acas Code); however, the terms are interchangeable.

3.1 Appoint a disciplinary chair

In almost all cases, the disciplinary chair should be someone different to the investigator. The only exception to this rule is in relation to very minor misconduct cases where there is straightforward evidence and the potential sanction is some form of warning. For example, in a situation where an employee is facing a verbal or written warning for poor time-keeping, the accused employee’s line manager might act as both investigator and disciplinary chair. The Acas Code states ‘In misconduct cases, where practicable, different people should carry out the investigation and disciplinary hearing.’

The disciplinary chair is usually a management level representative of the employer, but can be an external appointment if there is no-one internal to undertake the role.

Employers must ensure that the disciplinary chair is able to make an impartial decision and is not impacted by any bias; so an individual who has a close friendship with the accused employee, or had any potential involvement in the events that led to the allegations, should not be selected. Large employers are often in a position to select a disciplinary chair who has had little or no dealings with, or knowledge of, the accused employee prior to being selected as disciplinary chair, and often have a dedicated pool of managers who have been trained to take on the role of a disciplinary chair and can be called upon when needed. If this is not the case and the disciplinary chair has never undertaken the role before, some guidance should be provided to the individual appointed at the outset of the process and they should ensure they are familiar with the employer’s disciplinary policy.

The disciplinary chair should be supported throughout the process by a HR representative, whose role is to guide the chair on process, take minutes of hearings and assist with administrative tasks such as arranging hearings. This can be the same person that supported the investigator, or may be someone different. It is crucial that any decisions are made by the disciplinary chair and not by the HR representative.

3.2 Invite the accused employee to the disciplinary hearing

The accused employee must be invited to the disciplinary hearing in writing and provided with the following:

• a copy of the investigation report and all evidence gathered during the investigation;
• a copy of the employer’s disciplinary policy;
• the identity of the disciplinary chair and anyone else who will be in attendance at the hearing;
• the time, date and location of the disciplinary hearing;
• details of the allegations;
• information about what could happen if the allegations are upheld (eg, if the allegations are considered potential gross misconduct this should be stated, together with an indication that the accused employee may be dismissed without notice); and
• confirmation that the employee has a statutory right to be accompanied at the disciplinary hearing by a colleague or a trade union representative (section 10, Employment Relations Act 1999 (ERA 1999)).

The Acas Code states that the disciplinary hearing should be held ‘without unreasonable delay whilst allowing the employee reasonable time to prepare their case’. For smaller matters 48 hours may be enough time to prepare, but more complex matters may require longer.

3.3 Carry out further enquiries and prepare for the disciplinary hearing

In order to prepare for the disciplinary hearing, the disciplinary chair should:

• carefully review the investigation report and all evidence;
• review the employer’s disciplinary process and the Acas Code; and
• compile a list of questions that they intend to ask the employee at the hearing.

If the disciplinary chair is not satisfied with the investigation, they should carry out any further enquiries they consider are necessary prior to convening the disciplinary hearing.

3.4 Conduct the disciplinary hearing

Employees have a statutory right to be accompanied at a disciplinary hearing by a colleague or trade union representative (section 10, ERA 1999). Representatives may put the accused employee’s case to the disciplinary chair and sum up the case, but they may not answer questions on behalf of the accused employee.

During the disciplinary hearing the accused employee should be given an opportunity to make any submissions they wish to make in relation to the allegations and the evidence that has been gathered. The accused employee should also answer any questions put to them by the disciplinary chair.

If, during the disciplinary hearing, the disciplinary chair identifies additional evidence that should be gathered and considered before a decision can be reached, the hearing should be postponed while that evidence is gathered. The evidence should be provided to the accused employee, allowing sufficient time for them to consider the evidence before the hearing is reconvened.

The accused employee might submit written representations or other information during the disciplinary hearing and this should be considered by the disciplinary chair before reaching an outcome.

3.5 Reach an outcome

There are two stages to reaching a disciplinary outcome:

• determining whether or not the allegations are upheld; and
• if the allegations are upheld, determining the disciplinary sanction. This will either be dismissal, a warning (in line with the employer’s disciplinary policy) or no sanction.

In many cases, it is possible for the disciplinary chair to reach an outcome on the same day as the disciplinary hearing, following a short adjournment to consider the evidence. In more complex cases, it may be necessary to postpone for the disciplinary chair to reach a decision.

In order to fall within the ‘range of reasonable responses’ test outlined above, the following factors should be taken into account:

• the decision must be made by the disciplinary chair, with no undue influence from others, such as the HR representative, outside advisers or senior representatives of the employer (see Ramphal v Department for Transport [2015] IRLR 395 EAT);
• the decision must be based on the evidence gathered during a reasonable investigation. If the disciplinary chair considers that the investigation was inadequate or flawed, this must be addressed before an outcome is reached;
• the outcome must be in line with the employer’s disciplinary policy and must properly take into account any previous live warnings the employee has received; and
• if the disciplinary chair concludes that the allegations are upheld, careful consideration should be given to sanction. The chair should consider all circumstances, including any extenuating circumstances of the employee, such as illness, bereavement or other personal issues, before determining the appropriate sanction.

There are two ways in which an employee might be fairly dismissed for misconduct:

1. Summary dismissal – dismissal with immediate effect due to gross misconduct. In such cases, the employee might have a clean disciplinary record prior to the gross misconduct. Summary dismissal is with immediate effect and the employee has no right to a notice period or any payment in lieu of notice.
2. Dismissal following a series of warnings – in such cases, the employee will have received a number of warnings prior to dismissal, usually a verbal warning, a written warning and final written warning. The employee has the right to work their notice period or (if the employment contract allows or the employee agrees) receive a payment in lieu of notice.

3.6 Communicate the outcome to the employee

Best practice is for a disciplinary outcome to be communicated to the employee in person and then followed up in writing. The outcome letter should include:

• the outcome reached and any disciplinary sanction;
• a short explanation of why the outcome has been reached – this should be based on the evidence;
• the implications of the outcome (eg, duration of any warning, or date of termination of employment and any arrangements on termination of employment, such as return of property and final payslip); and
• confirmation that the employee has a right of appeal against the decision and the timescale within which any appeal must be submitted (this is usually detailed in the employer’s disciplinary policy).

Step 4 – Allow the employee a right of appeal

The Acas Code states that ‘where an employee feels that disciplinary action taken against them is wrong or unjust they should appeal against the decision. Appeals should be heard without unreasonable delay and ideally at an agreed time and place. Employees should let employers know the grounds for their appeal in writing.’

If an employee who has been dismissed submits an appeal, their employment will not be reinstated while the appeal is ongoing. The employee will only be reinstated if their appeal is successful, at which point the effect will be as if their employment had never been terminated, meaning that they may be owed back-pay.

4.1 Appoint an appeal chair

If the employee submits an appeal, the employer must appoint an appeal chair. This should be someone senior, impartial and, if at all possible, someone who has not been involved in the case previously. Appeal chairs are usually representatives of the employer, although they are often board members, trustees, governors, etc, rather than employees. Some larger employers appoint an appeal panel made up of a number of representatives. The chair/panel who hear the appeal should be more senior to the person who made the decision to dismiss, so as to avoid any arguments that the appeal chair/panel were bound to follow the decision of the dismissing manager.

4.2 Consider whether any further investigation is required

In some cases, an employee will allege in their appeal that their dismissal was flawed because steps were missed during the investigation and therefore evidence was not taken into account. While employers should always endeavour to carry out a robust investigation and disciplinary hearing, appeal chairs should not rule out the possibility of carrying out further investigations if they consider this is necessary to hold a fair appeal hearing. If new evidence is gathered, the employee must be given a chance to consider it before the appeal hearing.

4.3 Hold an appeal hearing

An appeal hearing should be convened without delay and may take the form of either:

• a review – the appeal chair will review the original decision and decide whether it is reasonable based on the evidence; or
• a rehearing – a repeat of the original disciplinary hearing.

The employer’s disciplinary policy may specify whether an appeal will take the form of a review or a rehearing.

The employee has a statutory right to be accompanied at an appeal hearing by a colleague or trade union representative.

4.4 Communicate the outcome

The appeal outcome should be communicated to the employee in writing as soon as possible following the appeal hearing.

Step 5 – Deal with any issues that may arise during the process

There are a number of issues that commonly occur during a disciplinary process that can be difficult for employers to deal with.

5.1 Employee is absent due to sickness

If an employee is absent due to sickness during a disciplinary process and unfit to attend a disciplinary hearing, the employer will have to make a decision about whether to wait for the employee to return to work or proceed with the disciplinary process in the employee’s absence. Before reaching a decision, employers should consider:

• the likely duration of the employee’s absence – input should be sought from occupational health in relation to the employee’s illness and prognosis. If the employee is likely to return to work in the near future, it might be unreasonable for an employer to proceed with a disciplinary hearing in the employee’s absence;
• any negative consequences of postponing the disciplinary hearing, such as any impact on colleagues who are keen to put the matter behind them; and
• whether the accused employee is fit to participate through other means, such as by providing written representations or joining online. This should be based on medical advice from occupational health or the employee’s doctor.

5.2 Employee requires reasonable adjustments due to a disability

Employers should be alert to any potential requirement to make reasonable adjustments to a disciplinary process for an employee with a disability, as required by section 20, EqA 2010. Common reasonable adjustments include:

• allowing the accused employee more time to prepare for hearings, or more frequent breaks during hearings;
• adjusting the venue or format of the hearing, moving the hearing from in-person to online or allowing the employee to join by phone or video call; and
• allowing the employee to be accompanied by a family member or friend at disciplinary hearings.

See How-to guide: How to comply with the duty to make reasonable adjustments in the workplace.

This Checklist was produced in conjunction with Michael Salter of 42BR Barristers.

Additional resources

Related Lexology Pro content

How-to guides:

Overview of employment law
How to carry out a fair termination of employment
Overview of workplace discrimination and harassment law
How to avoid disability discrimination in the workplace
How to comply with the duty to make reasonable adjustments in the workplace
How to carry out a fair dismissal on the grounds of SOSR
Understanding the legal protections for whistleblowers
The framework for resolving employment disputes in England and Wales

Checklists:

Identifying, reviewing and updating the terms of an employment contract
Drafting a staff handbook
Employment law considerations during a recruitment process
Determining the difference between an employee, a worker and an independent contractor
Carrying out a capability process
Conducting a redundancy exercise
Managing multi-jurisdictional redundancies in Europe
Employment, immigration and tax considerations when dealing with cross-border working
Carrying out workplace investigations in a cross-border context
Carrying out a TUPE transfer
An employer’s guide to fire and rehire

Quick views:

Protected characteristics under the Equality Act 2010
Key players in collective labour law – UK, Germany, Italy, France and the Netherlands
Collective redundancy consultation

Reliance on information posted:

While we use reasonable endeavours to provide up to date and relevant materials, the materials posted on our site are not intended to amount to advice on which reliance should be placed. They may not reflect recent changes in the law and are not intended to constitute a definitive or complete statement of the law. You may use them to stay up to date with legal developments but you should not use them for transactions or legal advice and you should carry out your own research. We therefore disclaim all liability and responsibility arising from any reliance placed on such materials by any visitor to our site, or by anyone who may be informed of any of its contents.