A fair disciplinary procedure in the UK follows the ACAS Code of Practice: investigate the matter, invite the employee to a formal hearing in writing, hold the hearing, give the employee a right to appeal, and keep records at every stage. Skipping any step — even with clear evidence of misconduct — can result in an employment tribunal finding the dismissal procedurally unfair and increasing any award by up to 25%.
Why the disciplinary procedure matters
Employment tribunals do not just ask whether the employee did something wrong. They ask whether the employer followed a fair process. An employee dismissed for genuine gross misconduct can still win an unfair dismissal claim if the employer failed to investigate properly, did not give the employee a chance to respond, or denied the right of appeal.
The ACAS Code of Practice on Disciplinary and Grievance Procedures is the benchmark. Tribunals take it into account when assessing fairness and can adjust awards by up to 25% if either party unreasonably fails to follow it.
Step 1: Investigate before acting
Before any formal action, carry out a reasonable investigation. This means:
- Gathering evidence (emails, CCTV footage, witness statements, timesheets)
- Speaking to witnesses separately and keeping notes
- Giving the accused employee an opportunity to explain their side informally if appropriate
The investigation does not need to be exhaustive — but it must be reasonable. A tribunal will ask: did the employer genuinely believe the employee was guilty, and did they have reasonable grounds for that belief based on a reasonable investigation?
If the matter is serious enough to require suspension during the investigation, suspension should be on full pay, kept as short as possible, and confirmed in writing. Suspension is not a punishment.
Step 2: Invite to a formal hearing in writing
If the investigation reveals there is a case to answer, invite the employee to a formal disciplinary hearing in writing. The letter must:
- Set out the alleged misconduct clearly
- Attach the evidence you intend to rely on
- Give at least 48 hours notice of the hearing (more is better)
- Remind the employee of their right to be accompanied by a trade union representative or a workplace colleague
Do not hold a disciplinary hearing without giving the employee time to prepare.
Step 3: Hold the hearing
At the hearing:
- Explain the allegation and the evidence
- Give the employee a full opportunity to respond, ask questions, and present their own evidence or witnesses
- Adjourn before making a decision — never announce the outcome at the end of the same hearing
- Consider all the evidence before deciding on the outcome
Possible outcomes: no action, informal warning, first written warning, final written warning, or dismissal (for gross misconduct or repeated warnings).
Step 4: Confirm the outcome in writing
Whatever the outcome, confirm it in writing within a reasonable time. The letter should state:
- The decision and the reasons for it
- If a warning: the improvement required, the timescale, and what will happen if there is no improvement
- If dismissal: the effective date and the reason
- The right to appeal, to whom, and the deadline
| Outcome | How long it stays on file (typical) | |---|---| | Verbal warning | 6 months | | First written warning | 12 months | | Final written warning | 12 to 24 months | | Dismissal | Permanent record |
Step 5: Conduct the appeal
The right of appeal is not optional. Every employee who receives a formal disciplinary outcome has the right to appeal. The appeal should be:
- Heard by a different manager where possible
- A genuine reconsideration of the decision, not a rubber stamp
- Confirmed in writing with the outcome and reasons
If no appeal is offered, a tribunal can reduce or deny the employer's ability to argue the dismissal was fair.
Common mistakes that cost employers at tribunal
Acting too quickly. Issuing a warning or dismissing on the same day an issue is discovered — without investigation or a hearing — is almost always procedurally unfair.
Using the same manager for investigation, hearing, and appeal. Each stage should ideally involve a different person. In very small businesses this is not always possible, but document why the same person had to be used.
No companion reminder. Forgetting to tell the employee they can bring a colleague or union rep to the hearing is a breach of the statutory right.
Expired warnings. Warnings should not be relied on after they have expired. Using an 18-month-old first written warning to justify a final written warning may be unfair.
Keeping disciplinary records
KornerIQ stores disciplinary records — invitations, hearing notes, outcome letters, and appeal outcomes — securely and searchable per employee. If a tribunal claim is made months or years later, the full paper trail is retrievable in minutes.
Frequently asked questions
Does the ACAS Code apply to small businesses? Yes. The ACAS Code of Practice applies to all employers regardless of size. A sole trader with one employee must still follow a fair procedure before dismissing.
Can I dismiss an employee without a formal warning? Yes — but only for genuine gross misconduct. Even then, you must investigate and hold a hearing. Dismissal without any process for gross misconduct is still at risk of being found unfair if the procedure was inadequate.
What if the employee refuses to attend the hearing? If the employee refuses to attend without good reason, you can proceed in their absence. Write to them explaining that the hearing will proceed and confirming the outcome afterwards.
How long do disciplinary records need to be kept? Warnings should be kept for their active period plus enough time after to deal with any related claim. Dismissal records should be kept for at least 2 years (the limitation period for most employment tribunal claims), though 6 years is safer for claims involving discrimination.
Can an employee record a disciplinary hearing? There is no legal right to record a hearing — but there is no law against it either. Many employers prohibit recording in their policy. If an employee does make a covert recording, the tribunal may still admit it as evidence.
