HR & EMPLOYMENT LAW
Establish the facts. Manage the process. Reach a defensible decision.
Dealing with suspected misconduct, gross misconduct or a disciplinary issue can require action quickly — but acting quickly should not mean deciding the outcome before the facts are clear.
Harrington Raine helps employers assess the allegation, determine the appropriate disciplinary process, manage investigations and suspensions, prepare for disciplinary hearings and reach a reasoned outcome. We also prepare the documentation needed to move the process forward.
Queries received before 3pm on a working day receive a response that working day.
A FAIR, DEFENSIBLE PROCESS
A serious allegation can create understandable pressure to act quickly. But deciding what happened should come before deciding what the outcome will be.
Even where the initial evidence appears strong, an employer should still establish the allegation clearly, understand what facts are disputed, review the available evidence and give the employee an appropriate opportunity to explain what happened.
The process should also consider the seriousness of the conduct, any relevant policies, whether comparable cases have been dealt with consistently and whether there are circumstances that materially affect the decision.
The objective is not to make disciplinary action difficult. It is to make the final decision capable of being explained and defended.
Act promptly
Delay can make disciplinary issues harder to manage. Evidence can become less clear, workplace relationships can deteriorate and unresolved concerns can affect the wider team.
Avoid prejudging the outcome
Moving quickly does not mean assuming the allegation is proven. The investigation and disciplinary process should establish what happened and what action, if any, the evidence supports.
DISCIPLINARY SUPPORT
Every disciplinary matter is different. The right process depends on what is alleged, the evidence available, the seriousness of the issue and where you are in the process.
Harrington Raine can support employers from the first allegation through to the final outcome, including:
Harrington Raine can also provide separately scoped HR Consultancy & Meeting Support for employers who want an experienced HR professional directly involved in an internal disciplinary meeting.
If the concern is primarily about an employee’s capability or poor performance rather than misconduct, see our Performance Management support.
For broader workplace issues outside the disciplinary process, explore our Employment Law Advice for employers.
Clarifying what is said to have happened, what needs to be established and whether formal action may be appropriate.
Helping determine what evidence should be gathered, who may need to be interviewed and how proportionate the investigation should be.
Assessing whether suspension is genuinely necessary and proportionate, rather than treating it as an automatic step.
Preparing invitation letters, manager questions, meeting scripts and the documents needed to run the process properly.
Helping managers understand the evidence, explore the employee’s explanation and keep the hearing focused on the relevant issues.
Advising on the options available, the seriousness of the conduct and the appropriate outcome in the circumstances.
Helping assess whether conduct may justify dismissal and whether the process and evidence support that route.
Supporting disciplinary appeals and situations where another issue arises during the process, such as a grievance.
DISCIPLINARY INVESTIGATIONS
A good disciplinary investigation should answer the questions that matter before the employer moves to a formal decision.
That does not mean investigating every possible detail. It means establishing enough reliable information to understand what happened, what remains disputed and whether there is a disciplinary case to answer.
Depending on the circumstances, that may involve considering:
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Define the allegation clearly so the investigation remains focused on the issue that actually needs resolving.
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Relevant emails, messages, documents, system records, CCTV or other information may help establish what happened.
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Identify employees or witnesses who have material information rather than interviewing people simply because they were nearby.
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Evidence that challenges the allegation can matter just as much as evidence that supports it.
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Conflicting accounts do not automatically mean the process cannot continue, but they may require further investigation before a reliable conclusion can be reached.
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A straightforward, largely undisputed issue may need relatively little investigation. A serious or heavily disputed allegation may require considerably more.
Investigate enough to make a reliable decision — not enough to create an endless process.
SUSPENSION DURING AN INVESTIGATION
Suspension can sometimes be appropriate while a serious workplace issue is investigated. But the seriousness of an allegation alone does not automatically mean the employee should be suspended.
The real question is whether allowing the employee to remain at work creates a genuine risk that needs managing.
Suspension may be worth considering where there are credible concerns about:
For example, a risk that evidence could be altered, removed or influenced.
Where remaining in the workplace could materially affect witnesses, working relationships or the investigation itself.
Where there is a genuine concern about employees, customers, the workplace or continued operations.
Where continued access could create a meaningful business or evidential risk.
But suspension is not the only option. Depending on the circumstances, a temporary change to duties, location, reporting arrangements or system access may manage the risk without removing the employee from work altogether.
The question is not whether the allegation sounds serious. It is whether suspension is genuinely necessary and proportionate in the circumstances.
If suspension is used, it should be kept under review and should not be treated as evidence that the employee has done anything wrong. Acas also advises that suspension should be kept as brief as possible and reviewed to make sure it remains necessary.
GROSS MISCONDUCT
Gross misconduct is conduct that is sufficiently serious, or has sufficiently serious consequences, that dismissal without notice may be a possible outcome.
But describing an allegation as gross misconduct does not make dismissal automatic.
The employer still needs to establish what happened, consider the employee’s explanation and decide whether the evidence supports both the allegation and the proposed outcome.
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The decision should be based on the evidence established through the investigation and disciplinary process, not the allegation alone.
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Your disciplinary rules may identify examples of conduct regarded as gross misconduct, but the circumstances of the individual case still matter.
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There may be disputed facts, context or mitigating circumstances that need to be considered before reaching a decision.
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Previous decisions can be relevant when assessing whether the proposed outcome is reasonable and consistent.
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Existing warnings, previous conduct and other relevant employment history may form part of the overall assessment.
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Even where misconduct is serious, the employer should consider whether dismissal is justified in all the circumstances rather than treating it as the inevitable result.
Gross misconduct describes the potential seriousness of the conduct. It does not remove the need to establish the facts and reach a reasoned decision.
Where dismissal is a realistic outcome, Harrington Raine can help assess the evidence, procedural position and potential risks before the final decision is made.
DISCIPLINARY HEARINGS & OUTCOMES
Where an investigation shows there is a disciplinary case to answer, the next stage will usually be a disciplinary hearing.
The employee should understand the allegation, the relevant evidence and the possible seriousness of the matter, and have an appropriate opportunity to explain their position before a decision is reached.
The purpose of the hearing is not simply to confirm what the employer already believes. It is the point at which the evidence, the employee’s response and any relevant mitigation can be considered together.
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Hear the allegation, evidence and response
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Assess the facts, mitigation and consistency
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Determine what outcome the evidence supports
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Set out the decision and appeal route in writing
What happens after the hearing?
Once the meeting has concluded, the employer needs to decide what the evidence supports and what outcome is reasonable in the circumstances. Depending on the case, that might include:
Where the allegation is not established or formal disciplinary action is not justified.
Where the issue is relatively minor and can appropriately be addressed without a formal warning.
Where formal action is justified and the circumstances support a warning.
Where the misconduct is sufficiently serious, or relevant previous warnings mean stronger action is appropriate.
Where the employment contract or disciplinary rules permit another sanction and it is appropriate in the circumstances.
Where the evidence, seriousness of the misconduct and overall circumstances support termination following a fair process.
The sanction should follow the evidence and seriousness of the case — not the employer’s frustration with the employee.
The outcome should then be confirmed clearly in writing, including the decision and any right of appeal.
Considering dismissal? See our Dismissal Advice for Employers.
ADVICE OR HANDS-ON SUPPORT
Every diciplinary situation is different. Some employers want an experienced adviser behind them while their own managers run the disciplinary process. Others want an HR professional directly involved in the meeting itself.
Harrington Raine can support you at the level you need, from practical advice and drafting through to fully managed meeting support.
The right support gives you confidence in the process and a stronger, more defensible outcome.
Our standard disciplinary support gives you clear, commercially focused advice and the documentation you need to run a fair process.
This can include:
Advice on the appropriate process and next steps
Tailored documentation (invitation letters, scripts, outcome letters and more)
Review of evidence and proposed decisions
Support with appeals and related issues
Ongoing access to an experienced advisor by telephone and email
If you would like an experienced HR professional to chair or participate directly in the disciplinary meeting, we can provide HR Consultancy & Meeting Support as a separately scoped service.
This can include:
An experienced HR consultant to chair or participate in the meeting
Participation in the meeting alongside your managers
Real-time guidance and advice
Support with the outcome and confirmation letter
Follow-up support, including appeals
FREQUENTLY ASKED QUESTIONS
Related employer support:
Broader advice on difficult employment decisions.
Ongoing advice, drafting and day-to-day employer support.
Support if an employment dispute becomes a Tribunal claim.
See the options for ongoing HR & Employment Law support.
Start by clarifying what is alleged and deciding whether any immediate action is required. That may include preserving evidence, considering whether an investigation is needed and assessing whether temporary measures are appropriate.
Avoid deciding the outcome at this stage. The purpose of the process is to establish the facts before deciding what action, if any, should follow.
An employer should establish the relevant facts before making a disciplinary decision, but the scale of the investigation should be proportionate to the issue.
Some straightforward matters may require little more than reviewing the available evidence. Serious, disputed or complex allegations may require a much more detailed investigation. Acas says employers should carry out the necessary investigation without unreasonable delay before disciplinary action is decided.
Suspension may be appropriate where allowing the employee to remain at work creates a genuine risk to the investigation, evidence, witnesses, safety or the business.
It should not be an automatic response to a serious allegation. Alternatives should be considered where they can manage the risk, and any suspension should be kept under review.
Gross misconduct is conduct that is very serious or has very serious consequences. Examples may include fraud, physical violence, gross negligence or serious insubordination, although what amounts to gross misconduct will depend on the circumstances and the employer's rules.
Not without an appropriate process.
Gross misconduct can potentially justify dismissal without notice, but the employer should still investigate the allegation and follow a fair disciplinary procedure before reaching that decision
Yes. Where the statutory right applies, an employee or worker can make a reasonable request to be accompanied at a formal disciplinary hearing by a work colleague, a certified trade union representative or a trade union official.
An employer may also need to consider other arrangements where required as a reasonable adjustment or permitted under its own policies.
A grievance does not automatically mean the disciplinary process must stop.
The employer can temporarily pause the disciplinary procedure and deal with the grievance first. Where the two matters are related, it may be appropriate to deal with them concurrently. The right approach depends on what the grievance concerns and whether it affects the fairness of the disciplinary process.
Sometimes, particularly in a smaller organisation where there are limited managers available. However, the Acas Code says that, where practicable, different people should carry out the investigation and disciplinary hearing.
The important point is that whoever makes the disciplinary decision approaches the evidence fairly and without having predetermined the outcome.
Depending on the circumstances and the employer's disciplinary procedure, possible outcomes may include an informal warning, a first written warning or a final written warning.
A first written warning will often be the normal formal starting point, but sufficiently serious misconduct can justify moving directly to a final written warning. The appropriate sanction should reflect the evidence, seriousness of the conduct and what is fair and reasonable in the circumstances.
Employers should offer employees the right to appeal a formal disciplinary decision. An appeal might challenge the severity of the outcome, the fairness of the procedure or rely on new evidence.
The appeal should reconsider whether the procedure and outcome were fair, and the final decision should be communicated in writing.
Potentially, yes. There is no rule requiring an employer to hold several disciplinary hearings or issue a series of warnings before dismissal in every case.
Where the conduct is sufficiently serious, dismissal may be a reasonable outcome following the first disciplinary process. However, the employer should still investigate the allegation, give the employee an appropriate opportunity to respond and consider whether dismissal is reasonable in all the circumstances. Acas confirms that gross misconduct can potentially justify dismissal for a first offence, but a fair disciplinary process should still be followed.
The employer should first understand why the employee is not attending and consider whether the hearing should be rearranged or whether another reasonable arrangement can be made.
If an employee persistently refuses or is unable to attend without good cause, it may eventually be reasonable for the employer to make a decision based on the evidence available. The employee should be told if the process is going to continue without them.
There is no universal timeframe because the appropriate length depends on the circumstances and complexity of the case.
The Acas Code says disciplinary issues, investigations, meetings and decisions should be dealt with promptly and without unreasonable delay. A straightforward allegation may be resolved relatively quickly, while a complex investigation involving several witnesses or disputed evidence may legitimately take longer.
The letter should clearly tell the employee what decision has been reached and explain the relevant outcome.
Where a warning is issued, it will normally set out the misconduct concerned, any improvement required, relevant timescales and the potential consequences of further misconduct. Where the outcome is dismissal, the communication should explain the decision and relevant termination details. Formal disciplinary outcomes should also explain the employee's right of appeal.
Explain what has happened and where you are in the process. Harrington Raine can help assess the allegation, recommend the appropriate route, prepare the documentation and support the disciplinary process through to outcome.
If you would prefer an experienced HR professional to chair or participate directly in the internal meeting, we can also discuss HR Consultancy & Meeting Support as a separately scoped service.
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