Workplace disciplinary investigation rights: what should happen before a decision

Jurisdiction: England and Wales. This is general legal information, not advice for an individual case. Northern Ireland has different ways of solving workplace disputes. This article does not explain the position in Scotland.

Facing a disciplinary investigation can be unsettling, especially if you do not know what the concern is or how a decision will be reached. Understanding the usual stages can help you make sense of the process.

This article covers England and Wales and provides general legal information, not advice for an individual case. Northern Ireland has different workplace dispute arrangements; the position in Scotland is outside this article.

Workplace disciplinary investigation rights: the stages

A disciplinary investigation at work can leave you unsure what will happen next or when you will be able to explain your side. The process may begin with an employer looking into a concern about conduct or performance.

GOV.UK guidance describes a progression that includes a letter setting out the issue, a meeting, a decision and a chance to appeal. The details of an investigation can vary: the law does not say exactly how disciplinary issues should be investigated or meetings held.

The procedure and the Acas Code

Your employer should put its disciplinary procedure in writing and make it easily available to staff. It should explain what performance or behaviour might lead to action, what action the employer might take and whom you can speak to if you disagree with a decision.

GOV.UK says disciplinary procedures should follow the Acas Code of Practice on disciplinary and grievance procedures, but that an employer does not have to follow the Code. It also says that, if an employer does not follow it and the employee wins an employment tribunal claim, the employee could receive a larger payout.

Guidance about the procedure is different from a statutory entitlement. For example, the right to be accompanied at a qualifying hearing is set out in legislation, subject to the conditions described below.

What may happen during an investigation

An investigation is the stage at which the employer looks into the concern. It may help establish what the issue is before a disciplinary meeting and decision. The written procedure can be a useful starting point for understanding how your employer describes its process.

A concern may also need further attention during the hearing. GOV.UK says that if you raise a significant new fact or issue, your employer might stop the hearing and look into it. The hearing should then be rearranged for a later date.

The disciplinary hearing: notice, evidence and your response

GOV.UK says an employer should not take disciplinary action before meeting with the employee and discussing the problem. Its suggested process includes a letter telling the employee the issue and inviting them to a disciplinary hearing.

The hearing should take place at a reasonable time and place. At it, the employer should explain the complaint, go through the evidence and give you a chance to tell your side of the story. This is an opportunity to respond to the concern rather than simply hear the outcome.

A worker who is invited or required to attend a disciplinary hearing has a statutory right to one eligible companion if they reasonably request one. GOV.UK identifies a colleague, trade union representative or trade union official as possible companions. The legislation sets out the categories of eligible companions.

A companion can present or sum up your case, say things in support of it and speak to you during the hearing. They cannot answer questions on your behalf.

The decision and what happens next

The outcome is not necessarily disciplinary action. GOV.UK lists possible decisions including no action, a written warning, a final warning, demotion or dismissal. Other outcomes may also be possible.

After the hearing, your employer should write to you as soon as possible, explaining what action it will take and telling you about your right to appeal. The written decision gives you a reference point for considering whether you agree with the outcome.

Appealing a disciplinary decision

If you think disciplinary action is unfair, GOV.UK says you can appeal. Its guidance is to write to your employer saying that you are appealing and why. Your reasons might concern the process, the decision or both.

You should be offered another meeting to discuss the appeal, held as soon as possible. If possible, someone who has not already been involved in the disciplinary action should deal with it. You have the right to bring a companion to the appeal hearing.

After the appeal meeting, your employer should write to you with its final decision.

If you are concerned the process was unfair

If something does not seem right, it may help to check the employer’s written procedure and note the parts of the process or decision that concern you. The internal appeal provides an opportunity to explain why you consider disciplinary action unfair.

A solicitor can help you understand your options, particularly if dismissal is a possibility or you need help with an appeal. If an employment tribunal claim may be relevant, consider seeking advice about any applicable time limits rather than assuming the internal process settles that question.

Frequently asked questions

Can my employer take disciplinary action before meeting with me?

GOV.UK guidance says your employer should not take disciplinary action before meeting with you and discussing the problem. The meeting is normally called a disciplinary hearing.

Can I take someone with me to a disciplinary hearing?

A worker invited or required to attend a disciplinary hearing has a statutory right to one eligible companion if they reasonably request one. GOV.UK identifies a colleague, trade union representative or trade union official as possible companions.

What can I do if I think a disciplinary decision is unfair?

You can appeal by writing to your employer and explaining why. You may also want to explore employment solicitor profiles if you need help understanding your options.

Does my employer have to follow the Acas Code?

GOV.UK says an employer’s disciplinary procedure should follow the Acas Code, but that the employer does not have to follow it. It also notes that not following the Code can have consequences if an employee wins an employment tribunal claim.