What is a Disciplinary Procedure? A Guide for Employers

If you have ever picked up a conduct or performance problem and felt that small flicker of “am I about to do this wrong”, you are not alone. It is one of the situations HR and managers worry about most and for good reason: get the procedure wrong and a genuinely fair decision can still end up in front of a tribunal.

A disciplinary procedure is the formal process an employer uses to deal with an employee’s conduct (their behaviour) or capability (their performance). It sets out the steps you follow, from investigation through to a hearing and a decision, so the process is fair, consistent and defensible. Every employer is required to have one and to make it available to employees, usually through a handbook or written policy.

The word that does all the work there is fair. There is no statutory requirement to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures to the letter but a tribunal will look closely at whether you followed it in a fair way. Treat the Code as the floor, not the ceiling.

When should you use the disciplinary procedure?

Not every problem needs the formal route. Where it is possible and appropriate, deal with things informally first. A quiet conversation or a letter of concern resolves most minor issues and usually does so faster and with less damage to the relationship than a formal process ever would.

The formal disciplinary procedure is for when informal methods have not worked or when the issue is serious enough that handling it informally would not be appropriate. That second category matters. Some things are too significant to have a quiet word about. Trying to is a mistake in itself.

Conduct or capability: which are you dealing with?

This is the first thing to get straight because it changes how you should respond.

Conduct is about behaviour, the things an employee is choosing to do or not do. Capability is about performance, whether the employee is able to do the job to the standard required. The distinction matters because where the issue is capability, the expectation is that you try to help first. Training, support, reasonable adjustments where appropriate and a real chance to improve come before anything formal. Only where that has not worked should the disciplinary procedure come into play.

Some employers run a separate capability procedure for exactly this reason, built on the same ACAS principles. Either approach is fine, as long as the employee knows which one applies and you follow it consistently.

What counts as misconduct and gross misconduct?

Misconduct is conduct that falls short of the standard you expect. What that means in practice varies from one organisation to the next and almost certainly from one industry to another, which is why your handbook or policies need to spell it out. If people do not know where the line is, you cannot fairly discipline them for crossing it.

Common examples of misconduct include:

• Persistent lateness

• Refusing to carry out reasonable work

• Bullying

• Harassment Gross misconduct is the serious end. It is behaviour so serious that it can justify dismissal without notice, even for a first offence. Examples include:

• Theft and fraud

• Physical violence

• Being under the influence of drugs or alcohol at work

• Victimisation Your handbook should make clear what you treat as gross misconduct. The clearer that list, the easier every later decision becomes.

Why the investigation has to come first

Before any formal hearing, you must carry out a full and thorough investigation. This is the step that gets rushed or skipped and it is the step that most often unravels a case later.

The point of the investigation is to gather the evidence, work out whether there is actually a case to answer and guide what happens next. Sometimes the investigation tells you to deal with the matter informally after all and that is a perfectly good outcome. The person carrying out the investigation should not be involved in the case themselves. If you do not have someone suitably independent in-house, an external investigator (this is something I do for clients) keeps it clean.

Do you need to suspend?

Usually, no. The default position should be to avoid suspending an employee while they are under investigation. Suspension is not a neutral act and treating it as one is a common error.

Only consider it where you reasonably believe you need to protect the investigation, the business, other employees or the employee under investigation. Even then, look at the alternatives first, such as moving the person to a different part of the business or having them work under supervision. If there is genuinely no alternative, suspension may be necessary but always take specific advice before you make that call.

What happens at a disciplinary hearing?

If the investigation finds there is a case to answer, you invite the employee to a disciplinary hearing. The person who holds the hearing should be someone different from whoever carried out the investigation, so the decision is made with fresh eyes.

The invitation must be in writing and must set out the possible outcomes, so the employee knows what is at stake. They have the right to be accompanied by a colleague or a trade union representative. They can bring a union rep even if you do not recognise unions.

At the hearing itself, you go through the evidence and give the employee a proper chance to put their side. Once you have heard everything, adjourn. Do not decide in the room. Take the time to consider the case carefully, take advice if you need it and then confirm the outcome to the employee in writing.

What are the possible disciplinary outcomes?

The decision will depend on the seriousness of the matter and what, if anything, has gone before. The usual options are:

• Informal warning where the matter is not serious
• First written warning, the normal starting point for misconduct or poor performance
• Final written warning, where a first warning has already been given and the behaviour has happened again (or used as a first step for something more serious)
• Dismissal with notice, where a final written warning has been issued and the problem continues (this would rarely be a first step)
• Summary dismissal, dismissal without notice, where the matter amounts to gross misconduct

An outcome can also include something constructive, like retraining or support to help the employee avoid the same situation again. Disciplinary action is not only about sanction. Sometimes the right result is fixing the thing that caused the problem in the first place.

Does the employee have a right of appeal?

Yes. You should always offer the right to appeal. An employee can appeal if they think the outcome was too severe or the procedure was not followed fairly. Handle the appeal properly. Ideally it is heard by someone who has not been involved so far. Do that and you close the process off cleanly.

What if the employee is neurodivergent?

This is where a standard disciplinary procedure needs a bit more thought. Behaviour that looks like misconduct (or performance that looks like capability) can sometimes be linked to an unmet need or a reasonable adjustment that was never put in place. That does not mean the procedure no longer applies. It means you may need to adjust how you run it. And you need to understand what is actually driving the behaviour before you act.

This is genuinely my area. Silk Helix is a neurodiversity specialist and getting this part right protects both the employee and your business. I have written a dedicated guide on disciplining a neurodivergent employee that covers the adjustments, the legal risks and the practical steps in detail, so I will point you there rather than repeat it all here.

Getting the procedure right, with confidence

A fair disciplinary procedure is not about catching people out. It is about handling a difficult situation properly, so that whatever you decide stands up to scrutiny and the people involved are treated decently along the way. And it matters more than it used to. The law around dismissal and qualifying periods has been changing and a clear, well-documented process is the best protection you have.

The single biggest difference is usually manager confidence. Most of the disciplinary problems I see do not come from bad intent, they come from managers who were never properly trained on how to run the process. That is exactly what our disciplinary and grievance training is built to fix, giving your managers the confidence to handle conduct and performance the right way. If you would rather talk through a specific situation first, you are always welcome to book a free consultation and we can work out the right next step together.followed fairly.