UK Disciplinary Procedure: ACAS Code 6-Step Process

The ACAS Code of Practice on Disciplinary and Grievance Procedures is the procedural backbone of UK workplace discipline. It is not itself law, but the Employment Tribunal must take it into account under the Trade Union and Labour Relations (Consolidation) Act 1992, s.207A — and unreasonable failure to follow it can adjust compensation by up to 25% in either direction. This how-to walks through the six-step process step by step, with the documentary discipline that turns a procedurally fair dismissal into a tribunal-proof one.

The Statutory Anchor

ACAS Code (HTML): https://www.acas.org.uk/acas-code-of-practice-on-disciplinary-and-grievance-procedures/html

TULRCA 1992, s.207A: tribunal “must” take the Code into account; can adjust compensation up to 25% upwards (against employer) or up to 25% downwards (against employee).

The Code applies to disciplinary and grievance situations alike. This article focuses on the disciplinary procedure (employer-initiated).

Step 1 — Establish the Facts of Each Case

Before any meeting, before any allegation, investigate.

What to do

• Appoint an investigator (usually a manager not in the same line of management as the employee)
• Interview the employee informally if appropriate
• Interview witnesses
• Gather documentary evidence (emails, system logs, CCTV, customer complaints)
• Produce an investigation report with findings of fact (not findings of guilt)

How long it should take

Days, not months. Speed is part of fairness. Burchell v British Home Stores [1980] ICR 303 (the foundational case) establishes that the employer must hold a reasonable belief based on a reasonable investigation that the conduct occurred — proportionate to the seriousness of the allegation.

Suspension

Suspension is a neutral act, not a disciplinary sanction. Use only where:

• The continued presence of the employee at work poses a risk
• Continued attendance would prejudice the investigation
• A reasonable alternative (e.g. reassignment) is not available

Suspension on full pay should be as short as possible. Lengthy suspension is itself a breach of trust and confidence (see Mezey v South West London and St George’s Mental Health NHS Trust [2007] EWCA Civ 106 line of cases).

Step 2 — Inform the Employee of the Allegation

Once the investigation is complete and the employer has decided there is a case to answer, write to the employee.

What the letter must contain

The right to be accompanied is statutory: Employment Relations Act 1999, s.10. The accompanying person can address the meeting, ask questions, sum up — but not answer questions on the worker’s behalf.

Step 3 — Hold a Meeting with the Employee

The disciplinary hearing.

Structure

1. Introductions and explanation of process — chairperson explains who is present and the structure of the meeting
2. The allegation re-stated — chair recites the allegation(s) and the evidence
3. Employee response — employee responds, calling any witnesses, offering any mitigation
4. Questions from chair — clarification, exploration of inconsistencies
5. Adjournment — chair adjourns to consider

Documentary discipline

• Take detailed notes (or record with consent) — these are the tribunal-proof record
• The chairperson should be a manager senior to the investigator (different person), to preserve independence
• A note-taker should be present and identified at the start

Employee’s right to call witnesses

The Code is silent on whether witnesses can be called by the employee. Best practice: allow the employee a fair chance to test the evidence. If a witness is unwilling to attend, the employer should consider a written statement.

Step 4 — Allow the Employee to Be Accompanied

This sits inside Step 3 procedurally but deserves its own emphasis.

Statutory right

Under Employment Relations Act 1999, s.10, every worker invited to a disciplinary or grievance hearing has the right to be accompanied by:

• A fellow worker, OR
• A trade union official (whether or not a union is recognised), OR
• A trade union representative reasonably certified by the union

If the employee’s chosen companion is unavailable, the employer must postpone the hearing once to a time within 5 working days that is reasonably suitable to the companion (s.10(4)–(5)).

What the companion can do

• Address the hearing
• Sum up the worker’s case
• Confer with the worker

What the companion cannot do

• Answer questions on behalf of the worker
• Prevent the employer from speaking to the worker

Step 5 — Decide on Appropriate Action

After the hearing, the chairperson considers the evidence and decides on outcome.

The range of outcomes

The “Range of Reasonable Responses” Test

In an unfair dismissal claim, the tribunal asks: was the employer’s response within the range of responses a reasonable employer might have made? (Iceland Frozen Foods v Jones [1982] IRLR 439). The tribunal does not substitute its own view.

Documenting the decision

Write to the employee with:

• The decision
• The reasons
• The level of warning (if any) and its live period
• The right of appeal (next step)
• The deadline to appeal (typically within 7 calendar days)

Gross misconduct — the Code still applies

Even where the conduct is so serious that summary dismissal is justified (theft, fraud, violence, gross negligence), the Code’s procedural steps still apply — investigate, inform, meet, decide, appeal. Speed is no excuse for skipping steps. Many tribunals have found procedural unfairness in dismissals that were “obviously” justified on substance because the employer rushed.

Step 6 — Provide the Employee with an Opportunity to Appeal

The right of appeal is mandatory under the Code.

Process

1. Employee gives written notice of appeal within the deadline, with grounds
2. Employer acknowledges the appeal
3. Employer arranges an appeal hearing, chaired by a manager senior to the original chair (and ideally not previously involved)
4. Appeal hearing follows the same structure as the original (Step 3)
5. Decision — uphold, reduce, or overturn the original decision
6. Written outcome letter — confirming the decision and stating that the appeal exhausts the internal procedure

Why appeal matters

A flaw in the original procedure can be cured by a properly conducted appeal (see Taylor v OCS Group [2006] ICR 1602). Conversely, denying an appeal converts a borderline-fair dismissal into an unfair one almost automatically.

After the appeal

The internal procedure is exhausted. The employee may:

• Notify ACAS Early Conciliation within 3 months less 1 day from the dismissal date — https://www.acas.org.uk/early-conciliation
• Bring an Employment Tribunal claim (subject to time limits and 2-year qualifying service for ordinary unfair dismissal)

The 25% Adjustment Risk

Under TULRCA 1992, s.207A, where there is an unreasonable failure to comply with the Code, the tribunal must consider adjusting compensation:

• Up to 25% upwards if the employer unreasonably failed to comply
• Up to 25% downwards if the employee unreasonably failed to comply

In a £30,000 unfair dismissal compensation case, a 25% uplift means an extra £7,500. The arithmetic alone is reason enough to follow the Code precisely.

Common Mistakes — Gyoseishoshi View

Mistake 1: Same Person as Investigator and Chair

Symptom: “We’re a small company, the manager investigated and decided.” Tribunal finds procedural unfairness; 25% uplift. Fix: Different people for investigation and decision. If genuinely too small, bring in an external HR consultant for one role.

Mistake 2: Skipping the Appeal Because “It’s Pointless”

Symptom: “We weren’t going to change our mind anyway.” Tribunal finds procedural unfairness; uplift. Fix: Always offer the appeal. The point is the procedure, not the outcome.

Mistake 3: Suspending Indefinitely

Symptom: Employee on suspension for 6 months while investigation drags. Constructive dismissal claim. Fix: Time-bound the suspension. Review weekly. Investigate quickly.

Mistake 4: Pre-Decided Outcome

Symptom: Disciplinary letter says “we propose to dismiss” before the hearing. Tribunal finds the hearing was a sham. Fix: Letter says “the hearing will consider whether disciplinary action up to and including dismissal is appropriate”.

Mistake 5: Denying the Right to Be Accompanied

Symptom: Employer refuses to postpone for the union rep’s availability. ERA 1999, s.10 breach + ACAS Code uplift. Fix: Postpone once for up to 5 working days. Document the postponement.

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Disclaimer

This article provides legal information, not legal advice. MmowW Scrib🐮 is a document preparation service operated by a licensed Gyoseishoshi (行政書士) office in Japan. We are not solicitors, barristers, or attorneys.

Sources

1. ACAS Code of Practice on Disciplinary and Grievance Procedures: https://www.acas.org.uk/acas-code-of-practice-on-disciplinary-and-grievance-procedures
2. ACAS Early Conciliation: https://www.acas.org.uk/early-conciliation
3. Employment Rights Act 1996: https://www.legislation.gov.uk/ukpga/1996/18/contents
4. Employment Relations Act 1999: https://www.legislation.gov.uk/ukpga/1999/26/contents