Are You Missing These Important Details in your Disciplinary Process?

When a disciplinary issue arises, most employers understand the broad process. There needs to be an investigation, the employee needs to know what the concern is, there may be a disciplinary hearing and they should have the opportunity to appeal the outcome.

Where things become more difficult is in the decisions that exist within those stages. Should the employee be suspended while the matter is investigated? How much information should they be given before the hearing? What happens if something new comes to light halfway through? What if they raise a grievance? Does an appeal simply review the paperwork or should somebody genuinely look at the decision again?

These are the details that can easily be overlooked, particularly in a smaller business where managers may only handle a formal disciplinary case occasionally.

This post is for: SME owners and managers who need to handle a formal disciplinary matter fairly and practically.

You’ll leave with: some of the less obvious points worth considering as you move through the process.

This post is not: a stage-by-stage disciplinary procedure or a substitute for advice on a particular case.

If you want something more specific, these may help:

Difficult Conversations at Work: A UK Guide for Employers and Managers

Handling Employee Misconduct in a UK Small Business: How to Respond Fairly

What Should You Do When an Employee Keeps Causing Problems?

Keep the investigation and the decision separate where you can

An investigation is there to establish what happened. It's not the point at which the business decides what disciplinary action to take, but in practice those two things can become blurred quite quickly. A manager who has already heard part of the story may naturally begin the investigation with a view about what they think happened. The risk is that their questions then start to confirm that view rather than properly explore the facts.

The current Acas Code says that, where practicable in misconduct cases, different people should carry out the investigation and the disciplinary hearing. It also makes clear that an investigatory meeting should not itself result in disciplinary action.

For a smaller business, it may not always be realistic to involve several different managers. That doesn’t mean the process is automatically unfair but it does make it more important to be disciplined about the different stages. The person ultimately deciding the outcome should still be able to look at the evidence properly and hear the employee’s response without having already closed their mind.

Where another manager is available, it may make sense to involve them. Where that is not possible, good notes become even more important, as does considering evidence that does not support the allegation as well as evidence that does.

Give the employee enough information to answer the case against them

Another area that often causes uncertainty is how much investigation material should be shared with the employee before the disciplinary hearing.

The starting point is fairness. The employee needs to understand what they're alleged to have done and have enough information to respond properly. Acas says it will normally be appropriate to provide copies of written evidence, which may include witness statements.

A recent Employment Appeal Tribunal decision gives some useful context. In Alom v Financial Conduct Authority [2025] EAT 138, the employee argued that his dismissal was unfair partly because he had not been given transcripts of investigation interviews with the complainant. The EAT did not accept that this made the dismissal unfair. The allegations eventually pursued were narrower than the original complaint and the employee had enough information to defend himself against those specific concerns.

That doesn’t mean employers can simply withhold investigation material. The focus should be on what the employee needs in order to understand and answer the actual case against them. If the business is relying on a piece of information when deciding whether an allegation is proven, it’s worth asking whether the employee has had a fair opportunity to see, understand and respond to it. In most cases, there would need to be a good reason for the answer to be no.

Suspension is not an automatic part of the process

When an allegation sounds serious, suspension can sometimes feel like the obvious next step. There are situations where it’s appropriate, particularly if there’s a genuine risk that the employee could interfere with evidence, influence witnesses, create a risk to others or make it difficult for the business to investigate properly. But seriousness alone does not make suspension necessary.

The Acas Code says that, where suspension with pay is considered necessary, it should be as brief as possible, kept under review and made clear that it is not disciplinary action. Acas guidance also encourages employers to consider whether there are workable alternatives. Depending on the circumstances, that might mean temporarily changing duties, reporting arrangements, location or access to particular systems while the investigation takes place.

A more useful starting point is therefore not simply whether the allegation is serious but what risk the business is trying to manage. Once that’s clear, it becomes easier to decide whether suspension is genuinely needed or whether another arrangement would work just as well.

Make it clear what meeting the employee is being invited to

Clarity about meetings can sound like a basic point, but it matters because employees need to know what process they’re in and what could happen next.

Employees have a statutory right to be accompanied at formal disciplinary hearings by an appropriate companion. Employers should therefore make it clear that the meeting is a disciplinary hearing, explain the allegations and possible consequences and remind the employee of that right.

A recent case, Wolfe v Taka Mayfair Ltd [2026] EAT 106, considered the statutory right to be accompanied and confirmed that the right depends on the worker making a request.

For employers, the practical lesson is not to rely on whether an employee has understood enough to make that request. It’s much better to remove the ambiguity altogether. If the meeting is disciplinary, say so clearly. Explain what it may lead to and remind the employee that they can be accompanied. That way, the employee is less likely to attend believing they’re due to have an informal discussion only to discover that something more serious is underway.

Be prepared to stop and investigate further

Once a disciplinary hearing is in the diary, there can be a natural pressure to get to the end of the process. But the hearing doesn’t have to end with a decision simply because that’s what everyone is expecting.

An employee may raise information that has not previously been considered. A witness account may be challenged in a way that needs checking. Another person may be identified who could materially change the picture.

Where these sorts of scenarios arise it may be better to adjourn the hearing, investigate the new point and reconvene once the business has a clearer understanding of what happened. It may add time but continuing simply because the process is already under way can create a bigger problem if the new information could genuinely affect the outcome.

The same principle applies if the employee raises a grievance during the disciplinary process. There's sometimes an assumption that the disciplinary must immediately stop but that’s not necessarily the case. The Acas Code says the disciplinary process may be temporarily suspended while the grievance is dealt with. Where the grievance and disciplinary issues are closely related, it may be appropriate to deal with them at the same time.

The sensible approach is to look at what the grievance is actually about. If it directly challenges the integrity of the disciplinary process, it may need to be resolved before the disciplinary can fairly continue. If it concerns overlapping facts, dealing with the issues together may be more practical. The important thing is not to treat the fact that a grievance has been raised as an automatic instruction to pause every other process.

Consider the evidence in context, particularly where gross misconduct is alleged

Witness evidence can be one of the more difficult parts of a disciplinary investigation. People may remember events differently, they may be uncomfortable putting their name to a statement and occasionally, somebody may ask for their evidence to remain anonymous.

Acas guidance says witnesses should normally have the opportunity to check and sign their statements, while anonymous statements should generally be avoided and used only in exceptional circumstances.

This is important because an employee needs a fair opportunity to understand and challenge the evidence being relied on. Where the source of that evidence is hidden that obviously becomes much harder.

The same care is needed where the alleged conduct appears on the face of it to be gross misconduct. A policy may give examples of conduct that could amount to gross misconduct, but that doesn’t remove the need to investigate what actually happened and consider the circumstances surrounding it.

A recent case is a useful reminder that even where conduct appears really serious, the circumstances surrounding it still matter. In XX v YY, the Employment Appeal Tribunal said the employee’s claim that she had acted under pressure from an abusive partner should have been considered when deciding whether her conduct was serious enough to amount to gross misconduct. That hadn’t been factored into the original decision, so the case was sent back to the Employment Tribunal to reconsider that point. It doesn’t mean the pressure from the partner will excuse the conduct - the point here is that the full circumstances should have been considered before reaching a decision.

For an employer, the practical point is straightforward. Serious conduct still needs to be considered in context. What actually happened? What did the employee understand at the time? Were there mitigating circumstances? How has the business dealt with comparable situations before?

Considering those factors does not mean excusing serious misconduct. It means making sure the eventual decision follows the evidence rather than simply the label attached to the allegation.

Treat the appeal as a genuine second look

The appeal stage can sometimes become little more than the final piece of paperwork in the process, particularly where the original decision-maker feels confident that the right decision has already been made. But that misses the purpose of an appeal.

Acas describes an appeal as a review of whether the original decision should be overturned or changed. The employer should consider whether the procedure was fair, whether the outcome was fair, whether further investigation is needed and whether a different outcome may be appropriate.

Where possible, the appeal should be handled by a manager who was not previously involved and who has the authority to make the final decision. That can be difficult in a small business with only a handful of senior managers but the aim should still be to make the process as impartial as reasonably possible. In some cases, bringing in somebody external to hear the appeal may be an option.

There’s another useful detail here. If further investigation during the appeal uncovers new and more serious information, Acas guidance says the employer should not simply increase the original disciplinary outcome unless its own policy allows that. It may instead need to start a new disciplinary process so that the new information can be considered properly. This demonstrates how an appeal should test whether the original decision was sound, rather than becoming an opportunity to find additional reasons to justify it – which can be a strong temptation.

The details worth remembering

The broad stages of a disciplinary process are usually not the difficult part. It’s the decisions made within those stages that require more judgement.

If there are four points worth holding on to, they’re these: keep the investigation separate from the decision where possible; make sure the employee has enough information to answer the case against them; be prepared to investigate further if something important changes and treat the appeal as a genuine opportunity to review the decision rather than simply confirm it.

Those are often the details that are easiest to lose sight of when everyone is concentrating on getting the process completed.

A disciplinary process does not need to become unnecessarily complicated. It does, however, need enough structure to give the business confidence that the facts have been considered properly, the employee has had a fair opportunity to respond and the eventual decision is one the employer can explain clearly.

A note on the Acas Code

Acas is currently consulting on a revised disciplinary and grievance Code of Practice, with the consultation due to close on 23 September 2026. Acas says the updated Code is expected to come into effect in 2027.

Sources

The main sources used for this article are the current Acas Code of Practice on disciplinary and grievance procedures, Acas guidance on investigations, suspension and appeals and the official Employment Appeal Tribunal judgments in Alom v Financial Conduct Authority [2025] EAT 138, Wolfe v Taka Mayfair Ltd [2026] EAT 106 and XX v YY [2026] EAT 89.

Disclaimer

This article is for general information and practical guidance. It isn’t legal advice. Disciplinary cases can turn on their particular facts, so employers should take advice where the circumstances are complex or the potential outcome is serious.