How to Run a Disciplinary Procedure | Employer Guide
A step-by-step employer guide to running a fair disciplinary procedure. Covers investigation, the disciplinary hearing, outcomes, the right of appeal, and how to avoid the common mistakes that lead to tribunal claims. Acas Code compliant. ERA 2025 updated.
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Bolton, Manchester, North WestEvery employer needs a disciplinary procedure that is fair, consistent, and compliant with the Acas Code of Practice. The procedure must include a thorough investigation, a formal hearing where the employee can respond, a decision within the range of reasonable responses, and a right of appeal heard by a separate decision-maker. Failure to follow the Acas Code can result in tribunal awards being increased by up to 25%. From January 2027, the qualifying period for unfair dismissal drops to six months, making a robust disciplinary procedure essential for every North West employer.
What Is a Disciplinary Procedure?
A disciplinary procedure is the structured process an employer follows when an employee's conduct or performance falls below the standard the employer is entitled to expect. It is not a punishment mechanism. It is a framework that ensures the employer acts fairly, consistently, and lawfully when addressing workplace problems, and that the employee has a genuine opportunity to understand the concerns and respond before any decision is made.
Every employer in England, Scotland, and Wales needs a disciplinary procedure. It does not matter whether you employ two people or two thousand. The Acas Code of Practice on Disciplinary and Grievance Procedures is a statutory code issued under section 199 of the Trade Union and Labour Relations (Consolidation) Act 1992. Employment tribunals are required to have regard to the Acas Code when deciding unfair dismissal and related claims. Where an employer unreasonably fails to follow the Acas Code, the tribunal has the power to increase any compensation award by up to 25 per cent. Where the employee unreasonably fails to follow it, the tribunal can reduce the award by up to 25 per cent.
How to run a disciplinary procedure correctly is therefore not optional knowledge for any employer. The Acas Code does not prescribe every detail, but it sets out the minimum steps a reasonable employer must take. CIPD guidance complements the Acas Code by providing practical frameworks for managers handling their first disciplinary case. For North West employers in particular, where small and medium-sized businesses often lack a dedicated HR function, understanding and following the Acas Code is the single most effective way to defend a tribunal claim.
Key Principles of a Fair Procedure
ERA 2025: What Changes for Employers
The Employment Rights Act 2025 (ERA 2025) introduces significant changes to unfair dismissal law. From January 2027, the qualifying period for ordinary unfair dismissal protection drops from two years to six months, meaning newly hired employees will be able to bring tribunal claims far sooner. ERA 2025 also doubles the time limit for bringing a tribunal claim from three months to six months from October 2026, giving former employees a longer window to challenge a dismissal. For every employer, these ERA 2025 reforms make getting the disciplinary process right from the first day of employment essential, not just after the two-year mark.
North West employers who have relied on the two-year qualifying period as a safety net should review their procedures now. Under ERA 2025, a flawed disciplinary process applied to an employee with only seven months' service could result in a tribunal claim that would not have been possible under the old rules.
Misconduct vs Capability
An employer must distinguish between conduct and capability issues because the fair process differs. Conduct issues arise where the employee can do the job but chooses to behave in a way that breaches standards. Capability issues arise where the employee is unable to perform to the required standard despite effort, whether through lack of skill, ill health, or other factors. Mixing up the two, or disciplining an employee for poor performance that is actually a capability issue, is a common employer mistake and one tribunals identify quickly.
Misconduct Examples
Persistent lateness or unauthorised absence
Minor insubordination
Failure to follow reasonable instructions
Misuse of company email or internet
Poor timekeeping without explanation
Careless work causing minor loss
Gross Misconduct Examples
Theft, fraud, or deliberate dishonesty
Violence or threats of violence
Serious harassment or discrimination
Gross negligence endangering others
Serious breach of confidentiality
Being under the influence of drugs or alcohol at work
CIPD note: The CIPD recommends that every employer, regardless of size, maintains a written disciplinary policy that is accessible to all staff and reviewed at least annually. North West employers without in-house HR should treat this as a priority, particularly ahead of the ERA 2025 changes coming into force.
How to Run a Disciplinary Procedure: Step by Step
Every employer must follow these eight steps to run a fair and lawful disciplinary procedure. This process reflects the Acas Code of Practice and is the standard a tribunal will measure you against. Cutting corners on any step risks converting a justified outcome into an unfair dismissal finding.
Identify the Issue and Decide Whether to Investigate
Before any formal action, the employer must establish what has allegedly happened. Not every workplace issue requires a formal disciplinary process. Minor issues may be better handled through an informal conversation. However, where the conduct is serious enough to warrant formal action, or where informal action has already been tried and failed, the employer should proceed to a formal investigation. The key question is: could this matter, if proven, result in a formal warning or dismissal? If yes, investigate.
Appoint an Investigating Officer
The employer should appoint someone to lead the investigation who is not the person who will chair the disciplinary hearing. This separation is a fundamental requirement of the Acas Code of Practice. The investigating officer should be someone with no prior involvement in the matter and no personal relationship with the individuals concerned that could compromise impartiality. In smaller North West businesses where management layers are thin, the employer may need to bring in an external HR consultant to maintain separation.
Conduct the Investigation
The investigation must be thorough and even-handed. The investigating officer should gather all relevant evidence: documents, emails, CCTV footage, system logs, attendance records, and any physical evidence. Interview the employee who is the subject of the investigation and any witnesses. Take written statements and have them signed. The standard the employer is working to is "reasonable belief based on reasonable investigation", the Burchell test. The employer does not need to prove the case beyond reasonable doubt, but the investigation must be sufficient for a reasonable employer to form a genuine belief.
Decide Whether There Is a Case to Answer
Once the investigation is complete, the investigating officer should prepare a report summarising the evidence and their findings. The employer must then decide whether there is a case to answer. If the evidence does not support the allegation, the matter should be dropped and the employee told clearly that no further action will be taken. If there is a case to answer, the employer proceeds to the formal disciplinary hearing. This gateway decision is important because it prevents employees being subjected to the stress of a formal hearing when the evidence does not warrant it.
Write the Invitation to Disciplinary Hearing
The employer must write to the employee inviting them to a formal disciplinary hearing. The Acas Code requires that this letter sets out the nature of the allegations in enough detail for the employee to understand the case against them, encloses copies of all evidence the employer intends to rely on, confirms that dismissal is a potential outcome where that is the case, states the employee's statutory right to be accompanied by a trade union representative or a work colleague, and gives reasonable notice of the hearing date, typically at least 48 hours. Failure to provide adequate notice or disclose the evidence in advance is a common employer error that tribunals treat seriously.
Hold the Disciplinary Hearing
The hearing is the centrepiece of the process. The employer or their appointed decision-maker should present the case, then give the employee a full and genuine opportunity to respond. The employee must be allowed to state their case, challenge any evidence, call witnesses if relevant, and raise any mitigating circumstances. The decision-maker must approach the hearing with an open mind. The Acas Code is clear that the hearing is not a formality: the employer must genuinely consider the employee's response before reaching a decision. The employer should take detailed notes throughout the hearing.
Make and Communicate the Decision
After the hearing, the decision-maker should consider all the evidence and the employee's response. The range of outcomes available to the employer includes: no formal action, a first written warning, a final written warning, dismissal with notice, or summary dismissal for gross misconduct. The decision must be proportionate. The employer should ask whether the sanction falls within the range of reasonable responses open to a reasonable employer, not what the decision-maker personally would have done. Communicate the decision in writing without unreasonable delay, setting out the reasons and the right of appeal.
Right of Appeal
The Acas Code requires the employer to offer the employee a right of appeal against the disciplinary decision. The appeal should be heard by a more senior manager or director who was not involved in the original decision. The employee should be told in the outcome letter how to appeal and the time limit for doing so. The appeal hearing should be a genuine rehearing or review, not a rubber-stamp of the original decision. For North West employers where the original decision-maker is the business owner, consider using an external HR professional to hear the appeal and maintain procedural fairness.
Employer tip: Document every step as you go. A tribunal hearing may not take place until 12 to 18 months after the disciplinary, and memories fade. Contemporaneous notes, signed witness statements, and filed correspondence are what defend your process. North West employers using DaisyHR benefit from built-in templates and audit trails that capture each stage automatically.
Common Mistakes That Lead to Tribunal Claims
These eight employer mistakes appear in tribunal decisions repeatedly. Every one of them is avoidable with proper process and preparation. Understanding what the tribunal looks for is the first step to protecting your business.
25% uplift risk: Where an employer unreasonably fails to follow the Acas Code of Practice, the tribunal can increase any compensation award by up to 25 per cent. Several of the mistakes below constitute clear breaches of the Acas Code and will trigger this uplift in addition to any basic and compensatory award.
Pre-judging the outcome before the hearing
The most common and most damaging employer mistake. Where the decision-maker has already decided the outcome before the disciplinary hearing takes place, the hearing is a sham. Tribunals are experienced at identifying pre-judgment from the evidence trail: emails sent before the hearing that reference the dismissal as a certainty, witness testimony about conversations that reveal the decision was already made, or suspiciously brief hearing notes that suggest the process was perfunctory. The employer must approach every hearing with a genuinely open mind.
Using the same person for investigation and hearing
The Acas Code of Practice recommends that the investigation and the disciplinary hearing are conducted by different people. Where the same person investigates and then chairs the hearing, the tribunal will question whether the employee had a fair opportunity to challenge the findings. The investigator has already formed a view on the evidence. Using them as the decision-maker creates an inherent conflict that the employer must avoid wherever possible.
Not giving the employee enough notice of the hearing
The employer must give the employee reasonable notice of the disciplinary hearing. What counts as reasonable depends on the complexity of the case, but the Acas Code suggests a minimum of 48 hours. The employee needs time to arrange accompaniment, review the evidence, and prepare their response. Holding a hearing the same day the allegation is put, or giving only 24 hours to respond to a complex case with extensive documentation, will be criticised by a tribunal as procedurally unfair.
Refusing the right to be accompanied
Under section 10 of the Employment Relations Act 1999, every employee and worker has the statutory right to be accompanied at a disciplinary hearing by a trade union representative or a work colleague. The employer cannot refuse this right. If the chosen companion is unavailable on the proposed date, the employer must postpone the hearing to a date within five working days. Denying the right to be accompanied is a standalone tribunal claim that can result in an award of up to two weeks' pay.
Not disclosing evidence before the hearing
The Acas Code requires the employer to provide the employee with copies of all evidence that will be relied on at the hearing, in advance. This includes witness statements, investigation notes, emails, CCTV stills, and any other documentation. Springing evidence on the employee at the hearing, or withholding evidence that undermines the employer's case, is a serious procedural failing. A tribunal will consider whether the employee had a reasonable opportunity to consider and challenge the evidence before the decision was made.
Skipping the investigation entirely
Some employers, particularly smaller North West businesses without in-house HR, move straight from allegation to hearing without conducting any investigation at all. This is a fundamental breach of the Acas Code. The investigation is the foundation of the entire process. Without it, the employer cannot demonstrate a reasonable belief in the employee's guilt based on a reasonable investigation, which is one of the three limbs of the Burchell test that every tribunal applies in misconduct dismissals.
Not offering a right of appeal
The Acas Code requires the employer to offer the employee a right of appeal against any disciplinary decision. Failure to offer an appeal is an unreasonable failure to follow the Acas Code and entitles the tribunal to uplift the compensation award by up to 25 per cent. The appeal must be heard by someone more senior or otherwise not involved in the original decision. For owner-managed businesses, an external HR professional can fulfil this role.
Dismissing without considering alternatives
Even where the employer has found the conduct proved, dismissal must be within the range of reasonable responses. The employer should consider whether a lesser sanction, such as a final written warning, demotion, or redeployment, would be more appropriate. A tribunal will look at the employee's length of service, disciplinary record, any mitigating circumstances raised at the hearing, and whether other employees who committed similar acts were treated consistently. The employer who jumps straight to dismissal without considering alternatives exposes themselves to an unfair dismissal finding.
If you recognise any of these patterns in how your business currently handles disciplinaries, the time to fix the process is now, not after the tribunal claim arrives. DaisyHR works with employer clients across the North West to audit and rebuild disciplinary procedures that withstand scrutiny.
Disciplinary Outcomes and What Happens Next
The outcome of a disciplinary hearing must be proportionate to the conduct found. The employer has a range of sanctions available and must consider which is appropriate given all the circumstances. A tribunal assessing the fairness of a dismissal will ask whether the sanction fell within the range of reasonable responses open to a reasonable employer.
No Formal Action
No warning on fileWhere the hearing finds that the allegation is not substantiated, or that the conduct occurred but does not warrant formal action, the employer should confirm in writing that no disciplinary sanction is being imposed. The employee should be told clearly that the matter is closed. This is an important outcome: not every disciplinary hearing must result in a warning. A fair employer recognises when the evidence does not support the case.
First Written Warning
Typically active for 6 monthsA first written warning is appropriate where the employer finds the conduct proved but considers it to be a first or relatively minor offence that does not justify a final warning. The warning letter must set out the nature of the misconduct, the improvement expected, the timescale for review, and the consequences of further misconduct. The employer should specify that the warning will remain active for a defined period, typically six months, after which it will lapse and be disregarded for future disciplinary purposes.
Final Written Warning
Typically active for 12 monthsA final written warning is appropriate where the misconduct is sufficiently serious to justify it, even as a first formal warning, or where the employee already has an active first written warning and commits further misconduct. The warning should make clear that any further misconduct during the active period may result in dismissal. The employer should set a review period of typically 12 months. Some employers mistakenly issue permanent final warnings; this is generally considered unreasonable unless the underlying conduct was extremely serious.
Dismissal with Notice
Statutory or contractual notice appliesDismissal with notice is appropriate where the employer concludes that the employment relationship cannot continue, but the conduct does not amount to gross misconduct. The employee is entitled to their contractual or statutory notice period, whichever is longer, and any accrued holiday pay. The employer must confirm the decision in writing, setting out the reason for dismissal, the effective date, the notice period, and the right of appeal.
Summary Dismissal (Gross Misconduct)
No notice periodSummary dismissal means dismissal without notice, and is only appropriate where the employer reasonably believes the employee has committed an act of gross misconduct that fundamentally breaches the contract of employment. Even in summary dismissal, the employer must still have followed a full and fair process. The dismissal letter must set out the gross misconduct found, confirm the effective date as the date of the hearing decision, confirm that no notice pay is due, and state the right of appeal.
What to Include in the Outcome Letter
The specific conduct found proved
The sanction imposed and the reasons
The duration of any warning and when it lapses
The improvement or behaviour expected going forward
The consequences of further misconduct during the active period
The right of appeal, including how to appeal and the deadline
The Appeal Process
The right of appeal is a mandatory element of a fair disciplinary process under the Acas Code. Every employer must offer the employee the opportunity to appeal any formal disciplinary decision, whether that is a written warning or a dismissal. The appeal must be heard by a person more senior than the original decision-maker, or at least by someone who was not involved in the original hearing or investigation. The appeal hearing itself should allow the employee to explain their grounds of appeal, whether that is new evidence, procedural failings, or that the sanction was disproportionate.
The appeal decision-maker can uphold the original decision, reduce the sanction, or overturn the decision entirely. The outcome of the appeal must be confirmed in writing. Where the appeal results in the dismissal being overturned, the employer should reinstate the employee with continuity of service and back pay. The employer must document the appeal hearing as thoroughly as the original disciplinary hearing.
ERA 2025: Extended Tribunal Window and Record Retention
Under the Employment Rights Act 2025, the time limit for bringing a tribunal claim doubles from three months to six months from October 2026. This means every employer must retain disciplinary records, hearing notes, evidence packs, and outcome letters for significantly longer. A former employee who was dismissed in January could file a tribunal claim as late as July under the new ERA 2025 rules. North West employers should update their data retention policies to reflect this extended window and ensure disciplinary files are complete and accessible for at least 12 months following any dismissal.
Grievance during disciplinary: If an employee raises a grievance during the disciplinary process, the employer must decide whether to pause the disciplinary to deal with the grievance first or to run both processes concurrently. The Acas Code advises that where the grievance relates to the disciplinary case, it may be appropriate to deal with them together. However, where the grievance raises separate issues, such as a complaint about the investigating officer's conduct, the employer should consider suspending the disciplinary until the grievance is resolved. Handling this incorrectly is a frequent source of procedural unfairness findings at tribunal.
DaisyHR supports employer clients across the North West with every stage of the disciplinary process, from drafting investigation terms of reference through to chairing appeal hearings. If you are facing a complex disciplinary case or need to rebuild your procedure ahead of the ERA 2025 changes, get in touch for a confidential conversation about how we can help.
ERA 2025: What Changes for Disciplinary Procedures
Unfair dismissal protection after 6 months. Every disciplinary dismissal carries full tribunal risk after just six months of service. Employers must build robust, Acas Code compliant disciplinary procedures now.
Tribunal claim window doubles from 3 to 6 months. Employers must retain all disciplinary records for at least six months from the effective date of termination.
Compensation cap removed. A poorly handled disciplinary dismissal of a senior employee could result in significantly larger tribunal awards than before ERA 2025.
Extended harassment duty. Employer liability extends to third-party harassment. Disciplinary procedures must address conduct by visitors, clients, and subcontractors.
Solid disciplinary procedures are your first line of defence.
Read our full ERA 2025 guide for North West employersFrequently Asked Questions
The Acas Code of Practice on Disciplinary and Grievance Procedures is not legally binding, but employment tribunals must have regard to it. Failure to follow the Acas Code can result in compensation being increased by up to 25%. In practice, every employer should treat it as mandatory for any disciplinary procedure.
The Acas Code recommends using different people for the investigation and the hearing. For smaller employers this may be difficult, but where possible the employer should separate the roles. A tribunal will consider the size and resources of the business when assessing fairness.
There is no fixed legal minimum, but five working days is generally considered reasonable. The employee must have enough time to prepare their response, review the evidence, and arrange a companion. Insufficient notice is a common employer mistake that undermines the fairness of the disciplinary procedure.
Offer a reasonable alternative date. If the employee still refuses without good reason, the employer can proceed in their absence, provided reasonable efforts have been made to accommodate them. Document all attempts to rearrange.
Yes. Dismissal is within the range of available outcomes for serious misconduct, gross misconduct, or a final written warning that has not been heeded. The employer must demonstrate that dismissal was within the range of reasonable responses open to a reasonable employer.
The employee has a statutory right under the Employment Relations Act 1999 to be accompanied at a disciplinary hearing by a trade union representative or a work colleague. The companion can address the hearing and confer with the employee but cannot answer questions on the employee’s behalf.
From January 2027, unfair dismissal after 6 months means every disciplinary dismissal carries full tribunal risk much sooner. The claim window doubles to 6 months from October 2026. The compensation cap is removed. North West employers must build robust, Acas Code compliant disciplinary procedures before these deadlines.
Suspension should not be automatic. The employer should only suspend where necessary, for example where there is a risk to evidence, other employees, or the business. Suspension should be on full pay and reviewed regularly. Unnecessary suspension can itself give rise to a constructive dismissal claim.
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Disciplinary and grievance advice for employers across Bolton, Manchester and the wider North West. · Last reviewed: March 2026