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Make sure you adhere to a fair disciplinary procedure when you suspect an employee of misconduct. A disciplinary hearing letter will help you to set out, in clear and simple terms, the processes to be followed and the employee's rights which will be upheld.
Use this letter:
when you want to invite an employee to attend a disciplinary hearing to address either:
after you’ve carried out an investigation into the employee’s potential misconduct, which found sufficient evidence to justify holding a disciplinary hearing
for junior or senior employees
for employees based in England, Wales, or Scotland
This letter covers:
which misconduct allegations the hearing will cover
details about the disciplinary hearing
procedural arrangements for the disciplinary hearing
dealing with additional documents, evidence, and witnesses which may be used to inform the hearing
who will be present at the hearing
the employee's right to have a companion present at the hearing
potential sanctions that many be imposed if it’s decided that misconduct has occurred
An invitation letter to a disciplinary hearing for misconduct formally invites an employee to a disciplinary hearing. Using a formal letter helps employers to meet their obligations under employment law. The letter should set out, in clear and simple terms, the process to be followed and the employee's rights during the process.
If you are considering formally disciplining an employee for misconduct, this letter helps to ensure that you, as an employer, comply with the laws on unfair dismissal. In particular, it is designed to fulfil certain requirements set out in the ACAS Code of Practice on Disciplinary and Grievance Procedures.
Make sure that you include enough information about the allegations against the employee to allow them to fully understand what they are accused of. If the alleged behaviour breaches a specific rule in their employment contract or your business’ employee handbook, specify this in your letter.
The letter should also give details of the time and venue for the disciplinary meeting and should advise the employee of their right to be accompanied at the meeting.
Before the hearing takes place, you should also communicate to the employee (either in the invitation letter or otherwise):
what evidence has been uncovered during the investigation to support the allegations of misconduct
any other information that may be discussed during the hearing
You should also ensure that all the correct arrangements are in place, as set out in your business' Grievance procedure or Disciplinary policy.
If you are considering dismissing an employee due to the alleged misconduct in question, this must be stated in advance in your invitation letter. Otherwise, a dismissal may be considered automatically unfair (see ‘What is unfair dismissal’ below for more information).
Note that employees can normally only be dismissed for a first disciplinary offence if it is gross misconduct.
During the hearing, the employer should:
set out the misconduct allegations in full
explain and run through all of the evidence collected
allow the employee a reasonable opportunity to present any evidence and a defence
allow the employee to call witnesses
ensure that notes are taken
let the employee ask questions, answer to the allegations made, and respond to any witnesses
Read How to run a disciplinary hearing and the ACAS guidance on disciplinary procedure for further information.
A senior member of staff or manager will normally chair the meeting and make decisions about the outcomes (eg regarding any disciplinary sanctions). It should be someone who was not involved in the allegations, unless this is impossible due to the size of your organisation. It is not essential that the person chairing the meeting be a senior member of staff, but it is recommended.
Employees must have a reasonable opportunity to call witnesses to the hearing and the opportunity to make points to the meeting about witness evidence.
If possible, it can be useful to have an HR person present to ensure the right process is followed. You should also have someone present to take minutes of what happens at the meeting.
The employee also has the right to be accompanied to their hearing. Employees may choose to bring a ‘companion’ to support them, who can be either:
a work colleague
a trade union representative certified or trained to act as a companion, or
an official employed by a trade union.
Employers may allow other companions, such as lawyers or spouses, at their discretion.
The employee must be given a reasonable opportunity to appeal the decision. This right would usually be set out in the business's grievance and disciplinary policy. It should also be explained at the hearing and in the written decision that the employee receives. You can communicate the outcome of your hearing using a Disciplinary outcome letter.
If an employee wants to appeal, they must do so in writing, stating their grounds for appealing. If the employee appeals correctly, you must usually arrange an appeal hearing. You can use a Letter inviting an employee to an appeal hearing for misconduct. Read Disciplinary appeals for more information.
If you dismiss an employee after their disciplinary hearing, the employee may be able to bring a legal claim against you to uphold their right not to be unfairly dismissed under the Employment Rights Act 1996. Note that some eligibility criteria apply to this right.
Unfair dismissal could be argued if, during the disciplinary process, you:
did not follow correct procedure for the disciplinary investigation, hearing, or communications regarding these
dismissed an employee without a valid reason
For more information, read Unfair dismissal.
Ask a lawyer for advice if you want to:
conduct a disciplinary hearing for employees based outside of England, Wales, and Scotland
check whether you’re holding a disciplinary hearing in a compliant and legally safe way
know whether dismissal or other sanctions may be appropriate in your situation
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