How to conduct a fair disciplinary process and avoid the common pitfalls

Disciplinary procedures

Sometimes taking formal steps to deal with employee issues is necessary in running a business and if handled incorrectly it can expose you to costly claims for unfair dismissal, constructive dismissal, or discrimination. Employment Tribunals don’t just look at whether misconduct has occurred but also often scrutinise whether a fair and reasonable process was followed.

The below guidance outlines some of the most common mistakes that we see made during disciplinary proceedings and explains what you can do to avoid them.

1. Failure to follow your Disciplinary Policy and the ACAS Code

Starting with perhaps the most obvious but still surprisingly common pitfall. Every employer should have a disciplinary procedure, and it should align with the ACAS Code of Practice. Managers should be trained in how to apply the disciplinary procedure and refamiliarise themselves with the policy when facing a potential disciplinary situation. Additionally, a copy of the policy should be shared with an employee who is facing disciplinary action.

Not following your own disciplinary procedure is one of the simplest ways to invite challenge. To minimise this risk, ensure the procedure is followed consistently and if there is an occasion when you would like to significantly deviate from it, seek HR advice before doing so.  

Failure to follow the ACAS Code of Practice may not only lead to a finding of unfair dismissal by the Employment Tribunal but can also lead to an increase in the compensation awarded (up to 25%).

2. Failing to conduct a thorough investigation

Before arranging a disciplinary hearing, employers must first establish the facts through a fair and impartial investigation. What managers don’t always realise is that this is the case even if the alleged misconduct is overt or undisputed. We frequently see employers skipping or rushing this step, which brings into question the fairness of the process and leaves the door open for legal challenge.

Common mistakes:

• Seeking to prove guilt rather than impartially gathering all relevant facts.
• Failing to consider the wider context and any mitigating factors.
• The investigator recommending a sanction (i.e. first / final warning or dismissal) within the investigation report.
• The investigator also being the decision maker in a subsequent hearing.

Best practice:

• Appoint an impartial investigator.
• Carryout a timely investigation process.
• Gather all the relevant facts, documents and testimonials.
• Keep clear records of the process.

3. Being vague or inaccurate about the allegations

A fair disciplinary process requires clear communication of the allegations so the employee can understand and respond.

Common mistakes:

• Providing vague or overly broad allegations.
• Failing to link the allegations to a specific policy or rule.
• Not being consistent with the allegations in all documents and communications.
• Adding new allegations or changing the allegations mid-process without notice.

Best practice:

• Clearly outline what the misconduct is (e.g. unauthorised absence on [DATE])
• Reference any policies that have been breached.
• Give the employee adequate time and information to prepare their response.

4. Issuing unjustified warnings

Disciplinary warnings should be appropriate, evidence-based and proportionate. Tribunals are increasingly scrutinising whether earlier warnings were justified, particularly where they lead to dismissal later on.

In our experience employers frequently overlook or tolerate inappropriate behaviour without addressing it informally, avoiding the difficult conversations, until the situation escalates or they become exasperated. It is at this stage that formal disciplinary proceedings are initiated, and frustration can cloud judgement, leading to sanctions that are harsher than the facts alone would justify.

Common mistakes:

• Issuing a final warning for a first minor offence.
• Considering prior verbal warnings (where no process was followed) in formal disciplinary decision making.
• Relying on expired or contested warnings to justify a sanction.  

Best practice:

• Follow your disciplinary policy in deciding on the appropriate sanction. This may even set out examples of what your business considers to be misconduct and gross misconduct for you to follow.
• Record your decision-making process and the rationale behind a formal sanction.
• Take any appeals seriously. They provide a valuable opportunity to ensure the process has been fair, through and balanced.

5. Letting emotions drive decisions

Managers must remain objective during disciplinary proceedings and ensure that personal feelings or opinions about an employee do not influence their judgement. Failing to recognise or manage personal bias can compromise the fairness and integrity of the process, potentially resulting in inconsistent or disproportionate outcomes that are difficult to justify when challenged.

Common mistakes:

• Acting on impulse, anger, personal opinion, or assumption.
• Rushing to dismiss someone without due process.
• Letting emotions deviate attention from the true facts of the case.
• Making comments during the process that undermine impartiality.

Best practice:

• Decisions must be made solely on the facts, evidence, and applicable policies.
• Identify and challenge any bias in those conducting the disciplinary process.
• Consider seeking external support where appropriate.
  
  

A fair disciplinary process is first and foremost about protecting the rights of the employee, an essential moral and legal responsibility. At the same time, it helps safeguard your business by reducing legal risk, maintaining professionalism, and promoting a culture of accountability. By following the ACAS Code of Practice and avoiding common pitfalls, you can ensure the process is both robust and compliant.

If you would like support in creating or reviewing a disciplinary procedure, or advice in relation to a disciplinary process, please do not hesitate to contact a member of our team.