Disciplinary Procedure: What UK Employers Need to Get Right Before Going Formal

A disciplinary procedure should not begin simply because something has gone wrong. The first question is whether the issue is actually misconduct, capability, or something that can still be resolved through a direct conversation. Acas recommends trying an informal approach first where that is appropriate, because it can often be the quickest and simplest way to resolve the problem.

We keep seeing the same pattern in growing businesses. Something happens, it feels serious, and the instinct is to move quickly because everyone wants clarity. But speed and fairness are not the same thing.

A disciplinary process works best when you slow down at the beginning.

The useful questions at the start are whether the issue concerns behaviour or capability, whether there is another explanation, and whether formal process is actually necessary.

Those questions sound basic. They are also where a surprising amount of later difficulty begins.

For a founder-led business without a large HR team, the disciplinary hearing is rarely the hardest part. The harder part is usually everything that happened before it: the conversations that were missed, the evidence that was not kept, the allegation that changed halfway through the disciplinary investigation, or the manager who had already decided what the outcome should be.

Getting that first judgement right makes everything that follows easier.

What is a disciplinary procedure?

A disciplinary procedure is the formal process an employer uses to deal with concerns about an employee's misconduct or, in some organisations, capability.

Acas defines misconduct as unacceptable or inappropriate behaviour and capability as somebody's ability to perform their job properly. It recommends that employers first consider whether a problem can be resolved informally before beginning the formal disciplinary process.

That distinction matters.

If somebody is refusing to carry out reasonable instructions, you may be looking at misconduct. If somebody is trying but cannot meet the required standard because they lack skill, knowledge or support, you may be looking at capability.

Those situations can look remarkably similar from a manager's desk. The employee is not delivering. Deadlines are being missed. The team is frustrated. The client is unhappy. But the reason underneath the problem changes the response.

We would not recommend moving an employee into a misconduct process simply because their performance is poor. Acas specifically advises employers to consider coaching, mentoring and training where the issue is capability, and some organisations use a separate capability procedure for that reason.

The useful question is not: “How quickly can we start a disciplinary?” It is: “What problem are we actually trying to solve?” That one question prevents a lot of unnecessary formal process.

Should you deal with employee misconduct informally first?

Quite often, yes.

Acas says an employer should first consider whether a concern can be resolved informally. That might mean speaking privately with the employee, listening to their explanation, agreeing what needs to change and, where the issue concerns performance, considering training or development.

We think this part gets underestimated. An informal conversation is not the soft option. Sometimes it is the more difficult conversation because the manager has to say clearly what they have observed without hiding behind a formal letter or an HR process.

Imagine somebody has been arriving late several times a week. There may be a conduct problem. There may also be a childcare issue, a transport problem, confusion about working hours or something happening outside work that the manager knows nothing about.

Acas itself advises employers dealing with unauthorised absence or lateness to speak to the employee, understand whether there is a reason they can support with and make sure the employee knows the organisation's expectations before moving into a formal disciplinary route where appropriate.

That conversation gives you information. And information is what you need before deciding what happens next.

When is an informal conversation enough?

An informal conversation may be enough where the issue is relatively minor, it is a first occurrence, expectations have not previously been made clear, the employee has a good record, or there is a reasonable prospect that a straightforward conversation will resolve it.

CIPD guidance similarly recommends considering whether a disciplinary matter can be resolved informally, for example through a discussion with the employee, before using the formal procedure.

The conversation still needs clarity. We would usually want the manager to cover what has happened, what standard or expectation applies, what the employee says about it, what needs to change and when the position will be reviewed.

You do not necessarily need a formal warning. You do need a sensible note afterwards. Not because every manager conversation should become a legal document, but because memories become surprisingly confident and surprisingly different after six months.

What counts as misconduct at work?

Misconduct is behaviour that breaks the organisation's rules or falls below the standard the employer reasonably expects.

Acas gives examples including bullying, harassment, insubordination and absence without permission. What counts as misconduct can also depend on the organisation's own policies and rules.

The organisation-specific part matters. A rule that is critical in a financial services business may barely arise in a different type of organisation. Behaviour that creates a serious safety risk in a warehouse may not have an equivalent in an office.

The disciplinary policy therefore needs to do more than say misconduct may lead to disciplinary action. Managers and employees should have a reasonable idea of what the business considers unacceptable. That does not mean trying to write down every possible human behaviour. It means giving useful examples and maintaining enough flexibility to deal with situations that could not have been predicted.

Can misconduct outside work lead to a disciplinary process?

Potentially, but the connection to work needs careful thought.

Acas says misconduct outside work can lead to disciplinary action where, for example, behaviour in front of external clients at a Christmas party reflects badly on the company. It also stresses that employers should investigate thoroughly and be able to show the effect on the business.

We think that last point is particularly important. Something being embarrassing is not automatically the same as something having a genuine employment consequence.

A social media post may create reputational concerns. An incident outside work may affect trust. Conduct towards a colleague at a social event may affect the working relationship. But the employer should still identify the actual connection rather than simply saying: “We did not like what happened.” Where that connection is weak, disciplinary action becomes much harder to justify.

When does misconduct become gross misconduct?

Gross misconduct describes conduct serious enough that dismissal without notice may be considered.

Acas gives examples including fraud, physical violence, gross negligence and serious insubordination. It also makes clear that what counts as gross misconduct can depend on the organisation's own rules.

One of the phrases we would be careful with is: “gross misconduct means automatic dismissal.” It does not.

Even where the allegation is extremely serious, Acas says the employer should still carry out an investigation and a fair disciplinary procedure before deciding on dismissal.

The seriousness of the allegation changes the potential outcome. It does not remove the need for fairness. If an employee is accused of fraud, you still need to establish what happened. If somebody is accused of violence, you still need to hear their account. If an allegation appears obvious from CCTV or digital evidence, the employee still needs a reasonable opportunity to respond to what you believe the evidence shows.

That can feel frustrating to a founder looking at a situation that appears completely clear. But apparent clarity and tested evidence are different things.

Why is the disciplinary investigation often more important than the hearing?

Because the investigation determines what case there actually is to answer.

The Acas step-by-step process separates the disciplinary investigation from the disciplinary hearing. That is useful because those stages have different jobs. The investigation gathers and tests information. The hearing considers the allegation and evidence and gives the employee an opportunity to respond before an outcome is decided.

Where this often becomes difficult is when those stages blur. The investigator starts trying to prove the allegation. Witness interviews become leading. Evidence that supports the employee is treated as inconvenient. The investigation report effectively recommends the outcome. Then the disciplinary hearing becomes little more than a confirmation exercise.

That is not what the process is supposed to be.

A good disciplinary investigation should be genuinely curious. Not: “How do we prove this employee did it?” But: “What happened, and what evidence allows us to reach a reasonable view?”

Case study: British Home Stores Ltd v Burchell

The case that still sits behind much of the practical thinking on misconduct dismissals is British Home Stores Ltd v Burchell [1980] ICR 303.

The principle has been repeated in numerous later tribunal decisions. Broadly, where an employer dismisses for misconduct, the employer should genuinely believe the employee committed the misconduct, have reasonable grounds for that belief and have carried out as much investigation as was reasonable in the circumstances before forming it.

That is a useful test because it does not demand perfect certainty. Employment investigations are not criminal trials. Sometimes there is no CCTV footage. Sometimes two people give completely different accounts. Sometimes the evidence is incomplete.

The employer does not necessarily need conclusive proof. The employer does need a genuine and reasonable belief reached after a reasonable investigation.

That difference is important. A disciplinary process is not about proving guilt beyond all possible doubt. It is about reaching a fair employment decision from the information reasonably available.

How thorough should a disciplinary investigation be?

The seriousness and complexity of the allegation should influence how much investigation is reasonable.

The courts have made clear that the reasonableness standard applies to the investigation itself, not only to the eventual decision. Later decisions applying Sainsbury's Supermarkets Ltd v Hitt [2003] EWCA Civ 1588 emphasise that a tribunal considers whether the investigation fell within the range of investigations a reasonable employer could have undertaken in those circumstances.

That does not mean every disciplinary investigation needs to become a three-week forensic exercise.

A straightforward allegation of repeated lateness may require attendance records, the employee's explanation, previous conversations and the relevant policy. An allegation involving harassment, dishonesty, senior management or conflicting witnesses may require considerably more.

The phrase we tend to use internally is: match the investigation to the allegation. The more serious the possible consequence for the employee, the more uncomfortable we become with shortcuts.

What evidence should a disciplinary investigation consider?

Depending on the case, evidence could include emails, Slack or Teams messages, CCTV, attendance records, expenses, customer complaints, policies, training records, witness evidence, previous correspondence and relevant performance or conduct history.

But evidence gathering is not simply collecting everything available. Someone has to ask what each piece actually proves.

A screenshot without context can be misleading. A witness who heard something from somebody else is not the same as a person who saw it. An email sent after the event may reflect somebody's interpretation rather than what happened.

Good investigations separate fact from assumption from opinion. That distinction makes the eventual disciplinary hearing much clearer.

What should happen before a disciplinary hearing?

The employee should understand the allegation they are being asked to answer and have a fair opportunity to prepare.

The Acas Code states that employers should follow a fair procedure in disciplinary cases, and that the procedure followed may be taken into account if the matter reaches an employment tribunal.

The formal hearing should therefore not contain surprises that fundamentally change the case.

Before the hearing, we would normally expect the employee to know the allegation, the possible consequences, when and where the hearing will take place, who will chair it, the evidence being relied on and their right to be accompanied where applicable.

The exact documentation will depend on the case and the organisation's own disciplinary procedure. But the principle is the same. The employee needs to know what they are responding to.

What if new evidence appears after the invitation?

Do not pretend it did not happen. And do not simply introduce a significant new allegation halfway through the hearing because everybody is already in the room.

Pause where necessary. Consider whether the evidence changes the allegation. Give the employee a fair opportunity to consider and respond. That may mean adjourning.

It can feel slower. It is usually faster than dealing with an appeal based on the employee never having had the chance to answer the actual case.

How should you run a disciplinary hearing fairly?

A disciplinary hearing should be a genuine decision-making meeting rather than the final performance of a decision already made.

The person chairing it should understand the evidence, hear the employee's explanation, ask the questions they need answered and remain open to the possibility that the original concern is not supported.

That last part can be surprisingly difficult. By the time a matter reaches a disciplinary hearing, several people may have spent days investigating it. There may be strong views. Managers may be exhausted by the problem. The business may want closure.

But a hearing that cannot realistically change the outcome is not much of a hearing.

What should the chair ask?

The exact questions depend on the allegation, but useful areas include whether the employee's understanding of events differs from the investigation, whether relevant evidence has been missed, whether context changes the meaning of particular evidence, whether any part of the allegation is accepted, whether there are mitigating circumstances, whether similar situations have been treated consistently and whether anything else should be considered before a decision is made.

We would also resist the urge to fill every silence. People sometimes disclose the most relevant information after having a few seconds to think.

Why should HR support the process without deciding the case?

HR has an important role in disciplinary matters. It can help managers understand procedure, identify missing evidence, keep the process consistent and prevent avoidable mistakes.

But there is an equally important boundary. The person appointed to investigate or decide the disciplinary should actually make that judgement.

Case study: Ramphal v Department for Transport

Ramphal v Department for Transport, UKEAT/0352/14/DA is a useful warning.

The Employment Appeal Tribunal considered a disciplinary process in which HR involvement had gone beyond neutral advice on law and procedure and had influenced findings concerning culpability.

Later tribunal decisions summarising the principle have stressed that HR can advise on law, process and consistency, but should be careful not to stray into deciding guilt or effectively selecting the sanction for the manager.

We think that distinction is particularly relevant for smaller businesses. A founder might say: “Can you just tell the manager what the answer is?” Sometimes our role is to say: “No. But we can make sure they have everything they need to make a fair decision.” That is a much healthier process.

What outcome can follow a disciplinary hearing?

The outcome should reflect the evidence, seriousness of the misconduct, previous history, the organisation's rules, mitigating circumstances and consistency with comparable cases.

Depending on the situation, that might mean no action, an informal management response, a first written warning, a final written warning, another sanction permitted by the contract or policy, or dismissal.

GOV.UK notes that dismissal for misconduct can be fair, but employers should follow a fair process and usually treat dismissal as the final stage where conduct is not gross misconduct. It also recognises that a first and final written warning may sometimes be appropriate for serious misconduct that falls short of gross misconduct.

The decision should not simply ask: “Is the allegation upheld?” It should also ask: “If it is upheld, what response is reasonable?” Those are two different decisions.

What if the allegation is not proven?

Then that matters.

A disciplinary investigation should be allowed to reach no case to answer. A hearing should be allowed to reach no disciplinary action.

If every formal process ends in a warning, employees eventually understand that the process is not really testing evidence. It is producing paperwork for a decision that already existed.

That damages trust well beyond the employee involved. Acas advises that where an investigation leads to no further action, employers should communicate that and, where someone has been suspended, bring the suspension to an end as soon as possible.

What commonly goes wrong in a disciplinary process?

The issue we see most often is not a spectacular legal error. It is drift.

A manager notices something. They mention it informally. Nothing is written down. The behaviour happens again. Another manager becomes involved. The description of what happened changes slightly. Somebody says: “We have spoken to them loads of times.” The employee says: “Nobody has ever told me this was a problem.” Both may genuinely believe they are right.

By the time HR becomes involved, the business thinks it has six months of evidence and the employee thinks this is the first formal conversation. That is difficult for everyone.

The investigation starts with the outcome

If the brief to the investigator is effectively “We know this happened. Please gather the evidence”, the process is already in trouble. The investigation should test the allegation, not validate management's existing belief.

Capability and misconduct are mixed together

Someone misses deadlines because they do not understand the role. Then they are disciplined for failing to perform. Those are not automatically the same issue. The distinction between inability and unwillingness needs to be understood before choosing the process.

The allegation keeps changing

The invitation says one thing. The investigation explored something broader. The hearing focuses on something slightly different again. The employee then has no clear case to answer. Write the allegation plainly. If it changes materially, acknowledge that.

Suspension is treated as automatic

Suspension can sometimes be necessary, particularly where there are risks to people, evidence or the integrity of an investigation. It should not be the reflex response to every serious allegation. If suspension is used, keep the need for it under review.

The sanction is chosen before mitigation is considered

A founder hears “gross misconduct” and thinks “dismissal”. But the label does not make the decision. The employer still needs to consider the circumstances and follow a fair process.

Nobody planned the appeal

The disciplinary decision is made. Then the employee appeals. Only then does the business realise everyone senior enough to hear the appeal has already been involved. If dismissal or a significant sanction is realistically possible, think about the appeal route at the beginning, not the end.

A practical disciplinary procedure checklist

The checklist below is how we would sense-check a formal disciplinary process before it begins. Before going formal, the employer should make sure the issue has been clearly identified, consider whether it is a misconduct or capability matter, decide whether it could reasonably be handled informally, identify the relevant policy or expectation, and consider whether there is any immediate safeguarding, evidence or business risk.

During the disciplinary investigation, the employer should consider whether the investigator is sufficiently impartial and whether the allegation has been written clearly. The investigation should gather evidence both supporting and contradicting the allegation, speak to relevant witnesses, separate assumptions from evidence, give the employee a fair opportunity to explain their account, and ensure the investigation is proportionate to the seriousness of the allegation.

Before the disciplinary hearing, the employer should check that the employee knows the allegation, has received the relevant evidence, understands the possible outcome, and has been given sufficient time to prepare. It should also be clear that the hearing chair is appropriate and that there is already someone suitable who could hear an appeal if necessary.

At the hearing, the employee should have a genuine opportunity to respond and the chair should remain open-minded. Any mitigating factors should be considered, new evidence should be handled fairly, and the chair should consider whether anything requires further investigation before reaching a decision.

Before deciding the outcome, the employer should consider which findings are actually supported by the evidence, what the relevant policy says, how serious the conduct is, and what the employee’s disciplinary record shows. Any mitigating factors should be taken into account, comparable cases should be treated consistently, and the proposed sanction should be reasonable. If any of these questions cannot be answered comfortably, it is usually worth addressing the issue before the process moves on.

If you cannot answer one of those questions comfortably, it is usually worth addressing it before the process moves on.

What does a good disciplinary process look like in a real business?

It usually looks less dramatic than people expect.

The allegation is written clearly. The investigator is curious. Managers do not gossip about the case. The employee understands what is happening. Records exist. The hearing chair asks sensible questions. HR advises without taking over. The outcome can be explained in plain English. And the appeal route has been considered before it is needed.

We are regularly brought into businesses where the intent has been good but the structure has not kept pace with the organisation.

JourneyHR's own employee relations work includes disciplinary investigations, hearings and appeals, particularly where a business lacks internal HR capacity, the case involves senior employees or impartiality is difficult to achieve internally.

One of the patterns we see is that a difficult case often exposes a wider management issue. The immediate problem may be misconduct. The underlying issue is that managers have been avoiding difficult conversations for months, or that the disciplinary policy exists but nobody has ever trained managers to use it, or that one senior person has become the investigator, hearing chair and appeal manager because the business never thought about process design when it was smaller.

That is often the more valuable learning. Resolve the case, certainly. Then ask what allowed it to become so difficult.

How JourneyHR can help

We work with businesses on disciplinary investigations, hearings and appeals where a case needs additional structure, senior HR judgement or genuine independence.

Sometimes that means running the disciplinary investigation. Sometimes the investigation has already been completed and the business needs an experienced independent chair for the hearing. Sometimes the difficult part is the appeal because everybody internally has already been involved. And sometimes the right advice is that the formal disciplinary process is not the sensible route at all.

JourneyHR's Disciplinary Investigations, Hearings + Appeals service covers the full process from evidence gathering through to hearings, outcomes and appeals. We also work with leaders and internal HR teams where they want support rather than somebody external to run the whole matter.

The point is not to make the process more formal than it needs to be. It is to make sure the right people make the right decisions, in the right order, with enough evidence to explain why.

If you have an employee misconduct issue in front of you now, or you want to review your disciplinary procedure before the next one arrives, we can help you work out the most sensible route.

Get in touch: JourneyHR contact page or Disciplinary Investigations, Hearings + Appeals

Final thought

The disciplinary hearing is rarely where a disciplinary process succeeds or fails.

By then, most of the important decisions have already been made. By then, someone had already decided whether the issue was misconduct, whether to handle it informally, how to frame the allegation, what to investigate and what evidence mattered.

Get those decisions right and the hearing becomes much simpler. That is what we would focus on first.

FAQs

What is the correct disciplinary procedure for employee misconduct?

A fair disciplinary procedure normally starts by deciding whether the matter can be handled informally. If formal action is necessary, the employer should investigate the allegation, tell the employee what the case is, provide a fair opportunity to respond at a disciplinary hearing, decide the outcome and allow an appeal. Employers should follow their own procedure and the Acas Code of Practice.

Do employers have to investigate before a disciplinary hearing?

Yes, where formal disciplinary action is being considered, the employer should carry out enough investigation to establish the relevant facts before deciding the case. For misconduct dismissals, longstanding case law asks whether the employer had a genuine belief based on reasonable grounds after carrying out as much investigation as was reasonable in the circumstances. The amount of investigation required will depend on the seriousness and complexity of the allegation.

Can an employee be dismissed for gross misconduct without a disciplinary hearing?

An employer may ultimately dismiss without notice where gross misconduct is established, but gross misconduct does not remove the need for a fair procedure. Acas says employers should still investigate and follow a fair disciplinary process before deciding on dismissal. The employee should normally have an opportunity to understand and respond to the allegation before the decision is made.

What is the difference between misconduct and capability?

Misconduct concerns inappropriate behaviour or an employee breaking workplace rules. Capability concerns whether the employee can perform the job to the required standard. The distinction matters because a capability issue may require coaching, training or another form of support rather than disciplinary action. Acas recommends employers try appropriate support before using a formal process for performance problems.

Can HR decide the outcome of a disciplinary hearing?

HR can advise on procedure, employment practice and consistency, but the appointed decision-maker should make the judgement on the evidence. The Employment Appeal Tribunal's decision in Ramphal v Department for Transport is a useful warning about HR involvement moving beyond procedural advice into influencing culpability. In sensitive or complex cases, an independent hearing chair can help preserve the integrity of the process.