Disciplinary Procedure: Your Rights at Work

GOV.UK says your employer could start formal disciplinary action against you if they have concerns about your work, conduct or absence. A disciplinary procedure is a formal way for an employer to deal with an employee's misconduct, which is unacceptable or inappropriate behaviour, or capability, which is the ability to perform the job properly. Before starting a formal procedure, Acas says the employer should first see whether the problem can be resolved informally, although GOV.UK says they can go straight to their formal disciplinary or dismissal procedures.

The Acas Code of Practice is the minimum an organisation should follow, and although it is not the law, if a disciplinary case reaches an employment tribunal, judges will take into consideration whether the employer has followed it in a fair way. The Acas Code mainly applies to those legally classed as an employee, but to keep good working relationships employers should follow the same fair procedure for all workers.

GOV.UK says your employer does not have to follow the Acas code, but if they do not and you win an employment tribunal claim against them, you could get a larger payout. If an employer unreasonably fails to comply with the Code, a tribunal may, if just and equitable, increase any award by no more than 25%.

If your employer puts their disciplinary procedures in your employment contract and then does not follow them, you could sue them for breach of contract.

Acas says the employer might agree to allow the companion to answer questions on your behalf, but this is not a legal requirement. If your chosen companion will not be available at the time proposed and you propose a reasonable alternative time before the end of the period of five working days beginning with the first working day after the day the employer proposed, the employer must postpone the hearing.

GOV.UK says that if a colleague cannot go with you and you are not in the union, you can ask to bring a family member or a Citizens Advice worker, but your employer does not have to agree unless your employment contract says they must. Your companion cannot be disciplined for supporting you, and if you are dismissed for exercising your right to be accompanied, you are regarded as unfairly dismissed whatever your length of service.

GOV.UK says the decision might be:

• No action
• A written warning
• A final warning
• Demotion
• Dismissal

It might also be anything else that could resolve the problem, for example an agreement to mediate with a co-worker you have had personal problems with. A first or final written warning should say what the misconduct or performance issue is, the changes needed with a timescale, what could happen if the changes are not made, how long the warning will stay in place, and any support or training the employer will provide if it relates to performance.

After a first written warning, the employer can give a final written warning if, within a set timeframe, the employee repeats or commits another misconduct or does not improve performance, and in serious cases the employer can go straight to a final written warning. The employer might dismiss for gross misconduct, or where the disciplinary procedure has had to be repeated and the employee previously had a final written warning. Instead of dismissal an employer could demote the employee, but must first check what the employment contract allows and discuss it fully with the employee, who has the right to be accompanied in that meeting.

Acas says the right of appeal is so the employee can raise an appeal if they feel the outcome is too severe or any stage of the disciplinary procedure was wrong or unfair.

Acas says some acts count as gross misconduct because they are very serious or have very serious effects, and examples could include:

• Fraud
• Physical violence
• Gross negligence, which means a serious lack of care to their duties or other people
• Serious insubordination, for example refusing to follow policies or take reasonable orders from a supervisor

What is seen as gross misconduct can depend on the organisation, and your organisation might have its own policy or rules with examples.

If your employer's procedure is part of your contract and they do not follow it, you could sue them for breach of contract. If you are dismissed, you can claim unfair dismissal at an employment tribunal if you meet the qualifying period, or if the reason is automatically unfair.

Acas offers free, confidential and impartial advice about all employment rights issues, and its helpline number is 0300 123 1100, open Monday to Friday, 8am to 6pm.

See our guide to unfair dismissal and our guide to constructive dismissal.

GOV.UK says that when a disciplinary issue is being looked into you might be suspended from work, which does not happen very often. If it does, it should normally be with pay and you should be told why you are being suspended. Acas says suspension does not mean an employee has done anything wrong and should not be used to discipline someone.

You can be suspended without pay if your employment contract says your employer can do this, but they must be acting reasonably. If your contract does not say so, GOV.UK says your employer may still be able to suspend you, but with pay, and to show that it is not a punishment the suspension will normally be on full pay. Acas says the suspended person should continue to get their pay and any benefits in their contract, and that if an employer reduces or stops pay during suspension, the employee could take legal action, even if the contract appears to allow it.

You keep your employment rights while suspended, and if you do not get the right pay you may be able to make a claim to an employment tribunal for unlawful deduction from wages. There is no minimum or maximum time for suspension, but it should be kept as short as possible and reviewed regularly. If you are told not to talk to other employees, customers or suppliers and this means you cannot defend yourself properly at a disciplinary hearing, you could make an appeal.

Acas says employers should try things like mentoring, coaching and training to help an employee improve before starting a formal disciplinary procedure for capability. Some employers use a separate capability procedure, which must still be in line with the Acas Code of Practice on disciplinary and grievance procedures.

GOV.UK says that if you have a disability, which may include a long-term illness, your employer has a legal duty to support disability in the workplace, and dismissal because of a disability may be unlawful discrimination. If an employee resigns while facing a disciplinary, Acas says this could lead to them later claiming constructive dismissal, which they can only do if they have worked for the organisation for 2 years or more.

• nidirect says that by law, at present, a disciplinary procedure must include certain minimum steps: a letter setting out the reasons why disciplinary action is being considered, a meeting to discuss the issue, a disciplinary decision and a chance to appeal.
• If your employer dismisses you without following this process and you make an unfair dismissal claim, the dismissal will normally be automatically unfair, and you normally need at least a year's service to make an unfair dismissal claim.
• The Labour Relations Agency has produced a Code of Practice on disciplinary procedures; you cannot take your employer to an Industrial Tribunal because they have not followed the Code, but if you make an unfair dismissal claim the Code can be taken into account.
• nidirect says that if you are suspended, the suspension should be on full pay to make clear that it is not a punishment.