Time Limit for Disciplinary Actions: Employer Guide

The ACAS Code of Practice on disciplinary and grievance procedures states: “employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions.”

In practice, most disciplinary matters are dealt with promptly, typically within a matter of weeks, while more complex or difficult cases – such as where fraud or a criminal offence is alleged – will inevitably take longer. Unexplained delays in the disciplinary proceedings are generally frowned upon by tribunals and are best avoided.

In this guide for employers, we outline the legal position on timings for disciplinary actions, and best practice advice to reduce legal risk when managing disciplinary procedures.

 

Is there a time limit for disciplinary actions at work?

 

In the UK, there is no statutory time limit explicitly set in employment law for how long an employer has to initiate or complete disciplinary actions. However, employers are expected to act promptly and handle disciplinary matters in a reasonable and timely manner to comply with best practices and employment law principles.

 

Delays in dealing with disciplinary issues

 

We often get asked the question regarding the time limit between the commission of an offence of misconduct, and the date on which disciplinary action is taken. By law, there is no time limit stipulated. Nor does the ACAS guidance on disciplinaries specify arbitrary deadlines, save that any disciplinary process must be gone through without delay.

In the 2015 case of Williams v Leeds United Football Club, the High Court found that in principle there is no limit on the length of time that can pass between an employee’s gross misconduct and their dismissal without notice, if the employer was unaware of the employee’s wrongdoing during that time.

However, employers should avoid delaying instituting disciplinary action without any reasonable justification. There must be a reasonable relationship between the date of commission of the offence of misconduct and the date on which disciplinary action is taken.

The question is not “what is the maximum period allowed between commission of the offence and the institution of disciplinary action,” but rather the reason for the delay is the important factor. In disputes of this nature, the employer would be required to explain the reasons for any undue or unreasonable delay. Provided that the delay can be justified – and provided that the employee was kept of progress during the investigation, or kept informed of the reasons for the delay, there should not be a problem. It would be unfair to both the employer and employee if the employer were to rush through an investigation into an allegation of misconduct, with the sole aim and object of instituting disciplinary action as quickly as possible.

All offences of misconduct require a proper investigation, and this would include taking reasonable time and making reasonable effort to properly investigate the allegations, and this would include the requirement to establish whether or not an act of misconduct has been committed, and if so, whether or not disciplinary action is necessary or required. One cannot be expected to comply with the requirements of a fair procedure if one is to rush through an investigation merely to save time. If a delay is likely, keep the employee informed.

Employers are advised to keep the following principles in mind when it comes to instituting disciplinary action:

 

• Act promptly, i.e. ensure that the investigation is done as soon as possible and that the employee is provided with the charges (preferably in the form of a charge sheet) and called into a disciplinary hearing as soon as reasonably possible; and
• If there is some delay in instituting disciplinary proceedings, the employer should be able to provide reasons for this delay and proof that the delay was not unreasonable.

 

Importantly, employers should guard against acting prematurely with the result that a proper investigation is sacrificed and that any finding of guilty and a sanction of dismissal could be set aside due to the lack of a proper case being presented. Where there is therefore some delay in the process, the employer should be able to prove that the delay was for a valid reason and as such reasonable and justifiable.

 

How much notice should you give for a disciplinary hearing?

 

If, following an investigation, an employer decides that there is a disciplinary case for an employee to answer, a disciplinary hearing should be arranged.

The first part of preparation for the disciplinary hearing is to set a date and time to hold the disciplinary hearing and arrange a suitable, private venue. The date set for the disciplinary hearing should be in line with your disciplinary procedure, and give you and the employee sufficient time to prepare. If the disciplinary policy doesn’t state the number of day’s notice to be provided, make sure you allow reasonable time to prepare.

Depending on how complex the investigation was and how much information there is for you to consider, normally five working days’ notice for a disciplinary hearing is sufficient.

A disciplinary hearing notice period isn’t specified by law but there must be a reasonable amount of time given between notifying an employee that they are required to attend a disciplinary meeting and the date set to hold the meeting to discuss their performance, behaviour or conduct.

The notice period is used to ensure that both employee and employer have sufficient time to prepare for the meeting.

Whilst what constitutes a reasonable amount of time for a disciplinary notice period will depend on the case in hand, five working days is generally seen as the recommended amount of time to allow although less notice may be reasonable in certain scenarios.

In this context, a disciplinary notice period is the time between an employee being notified that they will be required to attend a disciplinary hearing and the date that the disciplinary hearing meeting is scheduled to take place. Notifying an employee of an upcoming meeting of this nature should always follow informal measures to address the issue and a full and fair investigation into the matter that has resulted in the need for disciplinary action to be taken.

Your company should have a disciplinary procedure outlined in its staff handbook setting out the notice period that will be given before a disciplinary meeting to ensure a fair and consistent process is followed for all employees.

If no policy exists or advice on the notice period that should be issued isn’t available, then you must ensure that you give both yourself and the employee sufficient time to prepare in line with HR codes of practice.

What constitutes a reasonable time will depend on the seriousness of the issue at hand and how much evidence or information there is to review before the meeting.

As a general rule of thumb, five working days should be acceptable and sufficient for most scenarios but if either side wants to extend or shorten this notice period by mutual agreement then this is perfectly acceptable too. 48 hours’ notice is probably the bare minimum but we would advise giving more notice if at all possible as insufficient notice could affect the fairness of a subsequent dismissal.

 

After the disciplinary hearing

 

The disciplinary hearing should be adjourned for a decision to be made. It is good practice to adjourn the hearing to take time to consider all the evidence. If a decision is given at the end of the meeting, without a break, then it could be viewed as having been pre-judged.

If new evidence or issues have been raised, further investigation may be needed before a decision can be reached.

Once the disciplinary hearing has taken place, there are still some important steps to take to ensure the correct procedure has been followed all the way through the process.

Once the decision has been reached, the disciplinary hearing may be reconvened to give the decision to the employee. This may not always be appropriate, depending on the circumstances. The decision must always be given in writing along with instructions on how to appeal the decision.
If an appeal is submitted, then this must be dealt with by an individual who has not already been involved in the investigation or disciplinary hearing.

No specific time limits apply for disciplinary sanctions, but again, these should be reasonable. If you decide on dismissal, then inform the individual as soon as possible in writing including information about their notice period and their right to appeal.

 

Taking disciplinary action

 

Warnings in the workplace should be part of a disciplinary process and they should be designed to allow employees to change a particular behaviour within a given timeframe. They should be given as quickly as possible after the behaviour occurs. Any sanctions should be proportionate to the alleged offence.

There are no strict time limits for disciplinary actions, but it should all be as soon as is reasonably possible.

 

Verbal warning

A verbal warning may be given to an employee for a minor misconduct. The employee should be given a timeframe to change the behaviour and should be made aware that written warnings could follow if it is not corrected. A note of the existence of a verbal warning should be taken but disregarded for disciplinary or other purposes after a defined period of time (e.g. 6 months). The timeframe for warnings to remain “live” should be fair and proportionate.

 

First written warning

In the case of more serious misconduct, or where the behaviour has not been corrected or improved since the verbal warning, it may be appropriate to give a first written warning. It should be given after a proper investigation process and a disciplinary meeting. A file record of the warning should be kept but disregarded for disciplinary or other purposes after a specific period (e.g. 12 months). The timeframe for warnings to remain “live” should be fair and proportionate.

 

Final written warning

A final written warning may follow if the misconduct continues or recurs. The employer may also issue a final written warning for a first offence if it is serious enough. A final written warning should normally apply for a specific period, e.g. 12 months, and contain a statement that further misconduct may lead to dismissal.

 

Dismissal

Dismissal may result if misconduct continues after the final written warning. However, it may also be the result if an employee makes one mistake but the actual or possible consequences of that mistake are extremely serious, or could be considered gross negligence. The organisation’s disciplinary procedure should clearly state that dismissal may result in these situations. The employer should still follow the statutory three-stage dismissal process.

 

Other actions

The employment contract may allow for a different disciplinary penalty where misconduct continues following a final written warning. Examples include: disciplinary transfer; disciplinary suspension without pay; demotion; loss of seniority; or loss of an increment. These actions may only be applied if they are provided for in the employee’s contract. Any sanction should be confirmed in writing, with the procedure and time limits for appeal set out clearly.

 

How to deal with delays in disciplinaries

 

Employees raising a grievance

 

It is not uncommon for employees to raise a grievance while they are going through a disciplinary process and it can be difficult to decide how to proceed in such cases, particularly if there is a suspicion that the employee has tactically raised a grievance in order to attempt to delay the disciplinary process. In this situation, employers will need to consider if it would be appropriate to delay the process in order to deal with the grievance first or whether the grievance and disciplinary can be dealt with concurrently.

The decision is entirely at the employer’s discretion and there is no obligation to put the disciplinary process on hold to deal with a grievance. If the grievance and disciplinary relate to the same issues (but without the prejudicial concerns that are highlighted below), it could be appropriate to run the processes at the same time. When dealing with the matters concurrently, employers should still keep the procedures separate so that one outcome cannot be deemed to influence the other.

The ACAS Code of Practice on Disciplinary and Grievance Procedures (the “Code”) provides some examples of when it might be appropriate to delay proceedings:

 

• where the grievance relates to a potential conflict of interest of the disciplinary manager;
• where bias has been alleged in the conduct of the disciplinary hearing;
• where it has been alleged that the evidence provided by the investigating manager has been selectively supplied to the disciplinary manager; or
• where there is possible discrimination.

 

If any such issues are raised, it would be advisable to temporarily suspend the disciplinary process to deal with the grievance first. In which case, employers will also want to clearly communicate that the disciplinary process has been put on pause whilst those matters are considered. This gives the opportunity for employers to make changes to the investigation process or disciplinary panel as appropriate should the grievances be well-founded.
In any case, employers should give due consideration to any grievances raised during a disciplinary process (particularly where dismissal is a possible outcome) in order to avoid claims for unfair dismissal due to procedural unfairness.

 

Non-attendance by employees to meetings

 

Another common cause of delay is employees not attending or otherwise seeking to postpone meetings. This could be for a whole host of reasons including prior commitments, ill-health or that the employee’s chosen companion is unable to attend. Depending on the reason given for non-attendance or postponement, employers may wish to be flexible and re-arrange meetings where possible so that the employee has the best chance of being able to attend.

If an employee is persistently unable or unwilling to attend a disciplinary meeting without good reason, then employers may be able to proceed to make a decision in the employee’s absence on the evidence available. The outcome should then be communicated to the employee in writing. Employers should, however, make sure that they have a clear paper trail of their various attempts to engage with the employee to get them to attend a disciplinary meeting, to demonstrate flexibility and ultimately to show that they have warned the employee that a decision will be made in their absence.

 

The employee’s companion is unavailable

 

In some cases, delays can be caused by the employee’s chosen companion being unavailable to attend a scheduled meeting or hearing. In which case, if:

 

• the employee does have the right to be accompanied at the hearing,
• the companion is unavailable at the time or date proposed by the employee; and
• the employee has proposed an alternative time which is both reasonable and falls before the end of the period of five working days (starting the day after the employer’s proposed date),
• then the employer must postpone the meeting until the proposed alternative time or date. If the employee is disabled, it could in certain circumstances be a reasonable adjustment to postpone the meeting further than this.

 

 

Employees on sick leave during the process

 

Disciplinary processes are often delayed where employees take a leave of sickness absence. The sickness may be unrelated to the disciplinary process, but it is not uncommon for employees to take a leave of absence relating to stress or anxiety arising from the process itself. Employers should be aware that, depending on the circumstances, the disciplinary process does not have to be indefinitely paused in all cases of sickness absence.

Employers may make a referral to occupational health or otherwise obtain medical advice to confirm whether the employee is fit to attend a meeting. In some cases, an employee may not be fit to work in their specific role but may be fit enough to attend a disciplinary meeting and a doctor may also advise that it would be beneficial for the employee not to delay proceedings in order to, for example, resolve the source of the anxiety.

Employers will of course want to be considerate of the employee’s welfare and consider any potential adjustments that could be made to facilitate the process. For example, the employee may prefer to nominate someone to communicate with the disciplinary manager, or for a meeting to be held in a different location or via video conferencing. Where appropriate, employers could also invite the employee to provide written representations instead of providing evidence in-person.

Clear and ongoing communication is essential. Employers should also ensure that employees understand that the disciplinary process will continue where reasonably possible during their absence or otherwise without delay on their return.

 

Need assistance?

 

DabvidsonMorris’ employment law specialists are on hand to provide expert guidance on all aspects of workplace disciplinaries, including advice on timings and your obligations to follow a fair and lawful procedure. For specialist advice, contact us.

 

Time limit for disciplinary action FAQs

 

Is there a legal time limit for employers to take disciplinary action?

UK employment law does not specify a fixed time limit for disciplinary actions. However, employers are expected to act promptly and reasonably when addressing misconduct or performance issues.

 

How quickly should a disciplinary process begin?

Employers should start the process as soon as they are aware of an issue. Delays should be avoided unless there is a valid reason, such as requiring time to conduct a thorough investigation.

 

Can a delay affect the fairness of a disciplinary process?

Unnecessary delays can undermine the fairness of the process. Tribunals may consider whether any delays were reasonable and whether they impacted the employee’s ability to respond or defend themselves.

 

What happens if an incident occurred a long time ago?

Employers can still take action if the incident is significant, but delays in addressing historical misconduct could weaken their case. It’s important to document reasons for revisiting the issue after a long time.

 

Are there internal deadlines for disciplinary actions?

Many employers set time frames in their disciplinary policies, such as responding to allegations within a set number of days. Employers should adhere to their own policies to avoid claims of procedural unfairness.

 

Can an employee challenge a delay?

An employee can raise concerns about delays as part of a grievance or defence in a disciplinary hearing. In some cases, excessive delays could form the basis for a claim of unfair treatment.

 

How should employers handle delays during investigations?

Employers should communicate clearly with the employee about the reasons for any delays and provide updates on the progress of the investigation or disciplinary process.

 

Do holidays or absences affect the timeline?

Delays caused by holidays, illness, or absences may be considered reasonable, but employers should document these situations and ensure the process resumes promptly.

 

Can employees bring up time limits during a tribunal?

Yes, an employment tribunal will consider whether disciplinary action was handled in a timely and reasonable manner when assessing fairness. Prolonged delays could weaken an employer’s defence.

 

What guidance should employers follow?

Employers should adhere to the Acas Code of Practice on Disciplinary and Grievance Procedures, which emphasises acting promptly and ensuring fairness throughout the process.

 

How long should a disciplinary investigation take?

Some investigations might take longer depending on the case and how many people need to give information. For example, a simple case might only take a day to gather enough information, whereas a more complicated case could take several weeks.

 

Can you get a disciplinary without a warning?

There is no set amount of notice that an employer must give an employee to warn them that they are being suspended, but they must always act in accordance with any relevant disciplinary policy.

 

What is the procedure for disciplinary at work?

A formal disciplinary process usually involves a number of stages: Investigation (including consideration of suspension); Invitation to disciplinary hearing; Disciplinary hearing. Disciplinary outcome; Appeal process.