Issues of willful misconduct must be addressed through a disciplinary process. It is preferable for such issues to be addressed informally in the first instance. But should you need to invoke a formal procedure be sure to keep the below guidance in mind.


Before any disciplinary hearings can take place, a full investigation must be carried out to determine whether there is a disciplinary case to answer. The investigation must be carried out fairly, transparently and without judgement.

  • Investigations should seek to establish the facts of the case
  • Ideally a different person would conduct the investigation and the disciplinary process
  • Any interviews should be held without unreasonable delay
  • An investigation meeting can state whether there is a case to answer but should not be a disciplinary meeting in itself, nor should it confer any sanctions, this is the jurisdiction of the Disciplinary Hearing

If the employee cannot attend an investigation, the employer must make all reasonable efforts to rearrange the meeting – such as changing the date and time, or the location of the meeting. Consistent non-attendance may mean that the investigation will have to continue in their absence. The investigation will need to look at other evidence such as policies, attendance records, witness interviews, medical opinions, etc. such as is needed to come to a reasonable decision.

Preparing for the disciplinary hearing

Should the investigation find that there is indeed a case to answer, the employee should be invited to attend a disciplinary hearing. ACAS has template letters which can be adapted for this use.

Remember, to be clear is to be kind. The letter should contain sufficient details of the alleged misconduct and the possible outcomes of the hearing to enable the employee to prepare and be able to fairly represent their side of events at the hearing. The letter should also contain details of the date, time and location of the meeting. Most importantly, the letter should also inform the employee of their right to be accompanied at the meeting.

The role of the companion

In any disciplinary hearings where an individual may be subject to sanction as a result of being found to have committed the alleged misconduct, the employee has the right to be accompanied by a workplace colleague or a union representative. The employer may want to consider individuals who fall outside of these categories in specific circumstances (i.e.: as a reasonable adjustment).

The accompanying person has strict limitations to what they can and cannot do in the meeting, they can:

  • Ask questions on behalf of the employee
  • Summarise the employee’s case
  • Request a break on behalf of the employee
  • Take notes

The companion may not answer questions on behalf of the employee.

The hearing

The hearing is the opportunity for both parties to set out their side. The employer should be prepared to go through the alleged misconduct and the evidence to support that assertion, and make sure that someone is there to take impartial notes.

The employee should be given the opportunity to interrogate the evidence by presenting their own evidence, asking questions, calling relevant witnesses and explaining any mitigating circumstances.

ACAS provides more comprehensive guidance on the structure of disciplinary meetings here:

There may by occasions when the employee or witnesses may become upset in the course of the meeting, the hearing manager should be prepared to adjourn the meeting, either for a short period or, if necessary, another day (without unreasonable delay).

At the end of the meeting, the employer should inform the employee about the next steps and the expected time frame.

Failure to attend

There may be occasions when an employee is repeatedly unable or unwilling to attend a meeting. This may be for various reasons, including genuine illness or a refusal to face up to the issue. Employers will need to consider all the facts and come to a reasonable decision on how to proceed.

Considerations may include:

  • any rules the organisation has for dealing with failure to attend disciplinary meetings
  • the seriousness of the disciplinary issue under consideration
  • the employee’s disciplinary record (including current warnings), general work record, work experience, position and length of service
  • medical opinion on whether the employee is fit to attend the meeting
  • how similar cases in the past have been dealt with

Where an employee continues to be unavailable to attend a meeting the employer may conclude that a decision will need to be made on the evidence available. The employee should be informed where this is to be the case – they can also at this point be offered the opportunity to submit their testimony in writing to be considered alongside other evidence.

The outcome

Following the conclusion of the meeting (including any adjournments) the employer should go away and consider a fair and appropriate outcome to the hearing. This should be based upon:

The findings from the hearing evidence and interviews

  • Policy documents
  • Organisational precedent (what have you done in previous similar cases?).

The outcome should be communicated to the employee without unreasonable delay and in writing. Possible outcomes could include:

  • No action required
  • Informal warning
  • Written warnings
    • Can be first or final (dependent upon the employment record of the individual and the severity of the misconduct)
    • They should specify the details of the misconduct
    • How long the warning will remain on file
    • What will happen if there is found to be further misconduct during the active period of the warning.

Whatever the outcome, the employee should always be informed of the right to appeal any decisions reached.


In cases where the misconduct is sufficiently serious (gross misconduct) or it is the result of multiple disciplinary proceedings and there are already written warnings on file, the employer may decide to take steps to end the employee’s contract through dismissal. This must be carried out by a manager with the necessary authority to do so and should be detailed in your policy.
This must be communicated as soon as possible, and the employee must be told the following:

  • The reason for dismissal
  • Their notice period
  • The date their employment ends
  • The right to appeal

The right to appeal

When the employer communicates the outcome of the hearing to the employee, the letter must contain the right to appeal and how the employee can go about it. They may appeal on the grounds that the sanction is too severe or there is new evidence which was not available at the time of the original hearing.

The letter should contain details of who to send their appeal to, usually a more senior manager than was involved in the initial hearing, and the timeframe in which they must submit their written appeal.