A disciplinary procedure should be clear, consistent and comply with employment law
best practice. It should be made available to all staff and managers should be fully
familiar with it before they attempt to conduct a disciplinary process.
The principles behind a fair disciplinary process include:
A fair investigation taking place before any disciplinary hearing takes place;
The right to be accompanied by a work colleague or Trade Union
Representative at the disciplinary hearing;
The opportunity at any disciplinary hearing for the employee to put their case to
the employer and submit evidence in support of their position;
Any decision should be based on the evidence, and be based on what the employer reasonably
believes at the conclusion of the disciplinary hearing. This means that the process
should not be predetermined;
The employee has the right to appeal any decision if they are unhappy with the outcome.
These are core rights and any failure in these principles is likely to result in
a finding of unfair dismissal. The Procedure should be contained in a policy on
conducting a disciplinary process in relation to Conduct and Poor Performance/Capability.
This is because absence and ill health are not necessarily fault based. Someone
may be genuinely very ill and yet can be fairly dismissed because there are no real
prospects of the employee returning to work. To use a disciplinary procedure in
this event would be inappropriate and heavy handed.
There are two main categories of misconduct: Misconduct and Gross Misconduct. Misconduct
covers a wide range of issues which are not Gross Misconduct. Examples include:
Minor neglect of duties;
Making errors in work and poor workmanship;
Failing to comply with Company procedures (e.g. not clocking in or out as required);
Being scruffy or not following the business dress code;
Being lazy, skiving or being unreasonably argumentative.
Gross Misconduct is conduct that goes to the root of the contract and which is so
serious as to cause the employer to lose trust and confidence in the employee. There
are some obvious examples that will always be Gross Misconduct, such as:
Producing false time sheets or getting someone to clock the employee in when they
are not there;
Assaulting a colleague or making a clear threat of personal violence;
Sexual assault or harassment;
Racial, sexual orientation or religious harassment;
Gross negligence so that the employee’s conduct puts at risk colleagues or the public
(e.g. driving a forklift truck in a warehouse dangerously by racing it);
Serious breaches of health and safety (e.g. removing a guard from a cutting machine
or locking a fire door with a padlock);
Insubordination (refusing to obey a reasonable management instruction).
Most conduct matters can fall into either category or Misconduct or Gross Misconduct.
However, there are a number of matters which may amount to Gross Misconduct in some
businesses, but not others.
In these circumstances, if the employer has made it clear in their procedures and
your contract that they view such behaviour as gross misconduct, and they can justify
the categorisation, then such behaviour is likely to amount to gross misconduct.
For example: a Company may have a non-smoking policy in the yard, but which excludes
the designated smoking area. Joe is caught smoking outside the designated area,
but still in the yard and near to it. In this case, Joe has committed an act of
misconduct, but probably not one of gross misconduct. However, if the Company has
a blanket ban on smoking anywhere within its premises whether inside or outside,
and this is vital due to the flammable material necessary present on the premises,
if Joe lit up a cigarette in these circumstances he would probably be guilty of gross
Let me go through a scenario to explain how the process should work.
The employee, Joe, works on a building site as a labourer. Health and Safety requires
that he has steel toe-capped boots on.
He is carrying some paving slabs and he drops one on his feet, and breaks his big
On the face of the evidence so far he has seriously breached Health and Safety by
not wearing the protective boots he was provided with. He has also failed to follow
a management instruction. Because the allegation might amount to Gross Misconduct
he is suspended on pay and an investigation meeting is arranged for the day after.
The investigation goes ahead and Joe attends an investigation hearing. In the hearing
he says he should have been wearing steel toe-capped boots and he accepts that he
was provided with the boots. He says he was away over the weekend and came straight
from his girlfriend into work and that his boots were at home. He says that he thought
he would be okay with trainers for 1 day.
A disciplinary letter is sent out and he is required to attend the disciplinary hearing,
he is told of the allegations and is notified of his right to be accompanied by a
work colleague or a Trade Union Representative.
He is accompanied by a Union Representative at the disciplinary.
The person conducting the disciplinary should ask Joe to make any representations
and produce any relevant evidence. In this case the evidence is clear he was not
wearing the protective boots. The disciplinary officer will conclude that he has
breached company Health and Safety procedures. He has also clearly failed to obey
company instructions and put himself at risk of injury. This is capable of amounting
to gross misconduct. Therefore he could be dismissed for Gross Misconduct.
The correct procedures have been followed; this doesn’t mean that the disciplinary
officer has to dismiss Joe. He could decide that a “final written warning” would
suffice taking into account his length of service and the fact that he was injured
and will surely learn from his mistake.
The fact is that a harsh employer can be a fair employee and that some employees
may dismiss in this particular scenario and some may not. Unfair dismissal law allows
the employer flexibility in their response provided they are being reasonable.
Once a decision has been made and Joe is notified of the decision in writing he
must get an opportunity to have an appeal.
Ultimately in this scenario provided the procedure is correctly followed an Employment
Tribunal would not find that the dismissal was unfair. An Employment Tribunal is
not there to rehear the case, like another appeal and make its own decision. Its
task is to determine whether the employer has followed the correct procedure and
that the decision is one that a reasonable employer could make.
The difference between the Conduct Disciplinary Process and the Gross Misconduct
The misconduct disciplinary process involves several warnings prior to being dismissal.
The process is:
Verbal warning usually lasts 6 months;
Written warning usually for a 1 year period;
Final written warning usually for 1 year;
Dismissal with notice
There are occasions in which the employer will be permitted to go to a higher warning
level straight away, for example, if they decide to give a final written warning
as a direct alternative to dismissal for gross misconduct. The warnings do not have
to be for the same thing any misconduct is fine, but be careful to ensure that at
each step in the process there has been a full disciplinary procedure conducted,
that the employee has been given a disciplinary hearing before the warning is given
and that they have had a right of appeal.
Sometimes problems arise when absence for genuine ill health results in warnings
and the employer mixes these up with misconduct warnings they are not the same thing.
In conclusion, this article has explained the principles involved in a fair disciplinary
process, the stages in the process, such as investigation, disciplinary and the appeal,
the differences between Misconduct and Gross Misconduct, the method of conducting
an investigation and disciplinary and the different stages of a warning process.
We hope that the article has been helpful, but there is no real substitute for specific
advice from us directly. If you do need some help give us a call.