Disciplinary issues are among the most challenging aspects of HR practice. A misstep in process can undermine fairness, damage trust, and expose your organisation to costly legal claims. The stakes are about to get even higher: with the Employment Rights Act 2025 set to abolish the two-year qualifying period for unfair dismissal in 2026, every employee will soon have unfair dismissal protection from day one.
That makes a robust, fair and legally defensible disciplinary process non-negotiable.
Core principles of a fair process
At its heart, a fair disciplinary process is about consistency, transparency and respect. The Acas Code of Practice provides the benchmark, requiring employers to:
Act promptly and without unnecessary delay
Be consistent across similar cases
Investigate before deciding
Disclose the case to the employee
Allow a companion at hearings
Provide the right of appeal
Tribunals can uplift compensation by up to 25% where an employer unreasonably fails to follow the Code. But beyond legal defensibility, a fair process demonstrates integrity, strengthens culture, and helps retain employee trust.
The five-step framework
A clear framework keeps managers aligned and avoids missteps:
Investigate – establish facts impartially and keep an open mind.
Provide written notice – set out allegations, evidence, potential outcomes, and companion rights.
Hold a hearing – give the employee an opportunity to respond, question evidence, and bring a companion.
Decide proportionately – apply sanctions fairly, consistently, and with clear reasoning.
Offer an impartial appeal – provide a fresh, unbiased review where possible.
The Code applies to both conduct and capability issues, but not redundancy or non-renewal of fixed-term contracts.
Stage-by-stage actions
1. Triage the Issue
Decide if it’s misconduct (disciplinary) or capability (performance/health).
Consider whether informal resolution is sufficient.
Define the problem precisely and check consistency with previous cases.
Map roles: investigator, hearing chair, appeal officer.
2. Investigation
Investigate promptly and impartially.
Gather evidence for and against the allegation.
Avoid HR influencing culpability—HR should advise only on law and procedure.
Use suspension only where necessary, always on full pay, and review regularly.
3. Invitation to Hearing
Send a written invite with allegations, evidence, possible outcomes, and companion rights.
Give reasonable notice and reschedule within five working days if the companion is unavailable.
Identify the chair, HR, note-taker and witnesses.
Make reasonable adjustments and consider remote hearings where appropriate.
4. The Hearing
Test the evidence, allow the employee to respond and question, and ensure companion rights are respected.
Keep the process courteous, neutral and well-structured.
Take accurate notes, allow review, and adjourn if new issues arise.
5. Decision and Outcome
Base decisions on the evidence and employee representations.
Apply consistent and proportionate sanctions.
Confirm in writing with clear reasoning, expectations for improvement, and appeal rights.
Remember: gross misconduct justifies summary dismissal only after a fair investigation and hearing.
6. Appeal
Provide an impartial appeal with a fresh reviewer, ideally more senior.
Focus on grounds raised: procedure, sanction, new evidence or findings.
Confirm the outcome promptly in writing.
Adapting to Special Circumstances
Remote/hybrid hearings – acceptable if they avoid delay; ensure accessibility, security and fairness.
Disability adjustments – adapt format, timing, or companion rules to avoid discrimination.
Criminal allegations – don’t automatically pause internal processes; decide on the balance of probabilities.
Non-attendance or sickness – pause if reasonable, but if persistent without good cause, proceed on the papers with clear documentation.
Misconduct outside work – take action where business impact is proven, e.g., reputational damage.
Small organisations – if role separation isn’t possible, fairness can still be achieved with careful process; consider external support.
Common Pitfalls to Avoid
• Predetermination – never decide at the hearing; adjourn to reflect.
• Biased investigation – gather evidence both for and against.
• Poor notice/delay – balance promptness with fairness.
• Inadequate disclosure – always provide the evidence relied on.
• Misuse of suspension – suspend only when necessary, not by default.
• Skipping appeals or grievances – ignoring these risks procedural unfairness.
Final Thoughts
Disciplinary processes are about more than compliance—they’re about fairness, trust, and organisational culture. With day-one unfair dismissal rights on the horizon, now is the time to tighten procedures, train managers, and ensure your policies are not only aligned with the Acas Code but also embedded in everyday practice.
Done well, disciplinary processes protect the business, respect employees, and demonstrate the professionalism of HR.
This article was created with insights from Lex HR - your always-on HR legal assistant. Lex HR helps HR professionals navigate complex employment law with confidence, providing real-time, reliable advice tailored to your needs. Try it free today and see how much easier compliance can be.
