Common blunders made by employers when handling disciplinary proceedings

Dealing with employees who have committed, or are accused of, misconduct is one of the most common and often most difficult issues employers face. How the disciplinary process is handled can make the difference between a fair and an unfair dismissal. This guide for employers looks at the mistakes we see most often and how to avoid them.

Employees currently need two years’ continuous service to claim unfair dismissal. From 1 January 2027, the Employment Rights Act 2025 reduces this to six months and removes the cap on unfair dismissal compensation, so getting the process right will matter even more.

Start with a clear disciplinary policy

A well-drafted disciplinary policy, applied consistently, is the best starting point. It should set out the standards expected of employees, so that managers can recognise when someone has fallen short and respond appropriately. Your policy should reflect the Acas Code of Practice on disciplinary and grievance procedures. If you unreasonably fail to follow the Code, a tribunal can increase compensation by up to 25%.

A fair disciplinary procedure normally involves three stages:

1. a thorough investigation of the allegation
2. a disciplinary hearing at which the employee may be accompanied
3. the opportunity to appeal

When is a dismissal fair?

To decide whether a dismissal was fair, an employment tribunal will consider two main questions:

• whether the dismissal was for a potentially fair reason under section 98 of the Employment Rights Act 1996, such as misconduct
• whether the employer acted reasonably in treating that reason as sufficient to dismiss, including following a fair procedure in the circumstances

Both must be satisfied. Our article on conduct and capability dismissals explains how to choose the right process in the first place. Below are the most common mistakes, most of which can be avoided with good policies and preparation.

Mistakes in the investigation

An investigation is usually the first step. The employer should appoint a manager who has not been involved in the matter to investigate, gather documents and speak to relevant witnesses, including the employee accused of misconduct. Where possible, the investigator should not be the person who later decides the outcome.

A common mistake is treating the investigation as a box-ticking exercise to confirm a conclusion already reached. The investigator should keep an open mind and look for evidence that supports the employee’s account as well as evidence against it. Our guide to conducting HR investigations covers this in more detail.

Mistakes in the invitation letter

Hold the disciplinary hearing without unreasonable delay, but give the employee enough time to consider the allegations, prepare their response and arrange for someone to accompany them.

The invitation letter should explain the allegations, include copies of the evidence, such as witness statements, and state the possible consequences, for example a warning or dismissal. If dismissal is a possible outcome, the letter should say so clearly. The employer can still decide on a lesser sanction after hearing the employee.

The right to be accompanied

Workers have a statutory right to be accompanied by a trade union official, a certified union representative or a colleague at a disciplinary hearing that could result in a formal warning or other disciplinary action, and at an appeal hearing. If the chosen companion is not available, the worker can propose another time within five working days.

The companion can put and sum up the worker’s case, respond on their behalf to any view expressed at the hearing and confer with them during the hearing.

They cannot answer questions on the worker’s behalf, address the hearing if the worker does not want them to, or stop the employer from explaining its case. The person chairing the hearing should understand the companion’s role and not allow them to take over the meeting.

Mistakes at the disciplinary hearing

A note-taker should attend and keep an accurate record of the hearing, including how long it lasted and what was discussed. The notes do not need to be word for word, but they should not be selective. A few short paragraphs for a hearing lasting over an hour will not be enough.

The parties may agree to record the meeting and prepare a transcript afterwards. Employers should also assume that the employee might be recording the meeting secretly and should not say anything they would not want repeated in front of an employment judge. Our article on recordings in disciplinary proceedings looks at this issue.

Preparing key questions is sensible, but sticking rigidly to a script often means the person chairing the hearing is not really listening to the employee’s answers. Prepared questions should be a guide to the main themes and should not stop you exploring other relevant points. Refer to the evidence where appropriate and give the employee a chance to respond to it.

If the chair disagrees with or does not understand something the employee says, they should ask for more information. If the employee’s explanation conflicts with the evidence, the employee should be told and asked to explain the difference.

Mistakes when communicating the decision

After the hearing, the chair should consider all the evidence and the employee’s representations, and take enough time to do this properly. In more complex cases, this may mean sending a written decision a few days after the hearing. In simpler cases, a few hours may be enough.

Confirm the decision in writing, give the reasons and explain the right of appeal. It is good practice to set out any mitigation considered when deciding the sanction, as this shows that all relevant information was taken into account. Our article on when dismissal can be reasonable without gross misconduct looks at how tribunals assess the choice of sanction.

Use the appeal to put things right

Where possible, the appeal should be heard by a manager who has not been involved before. If flaws in the earlier process come to light, a thorough appeal can sometimes correct them. Handling each stage with care reduces the chance of an employee succeeding in an unfair dismissal claim, and our employment law advice for employers can support you through each step.

If you have a disciplinary matter to deal with, book a free 30-minute consultation or call our employment solicitors on 0141 471 9166.