21 October 2020

Handling misconduct can be difficult. Depending on the severity of the misconduct, an employer will have a number of options for how to properly respond.

In many cases, the misconduct of an employee should be met with disciplinary action by the employer.

But what is disciplinary action? 

In the broadest, simplest term, disciplinary action is a reprimand or corrective action made in response to poor or negative employee performance. This can include behaviour in the workplace or declining quality of work. 

The Acas code of practice outlines the appropriate procedure that should be conducted when addressing a disciplinary or grievance process.

However, when it comes to outlining what a formal disciplinary action is, the answer isn’t so simple.

Understanding what counts as disciplinary action is crucial when handling misconduct at work.


What is a disciplinary notice?


A notice is a formal acknowledgement that an employee will be reprimanded. This can involve concerns about an employee’s work conduct or increasing absences.

However, there are informal steps that employers can and should consider before this.

These include one-to-one meetings with line managers. Simply discussing an issue with an employee can often resolve the issue. This is best discussed before having to resort to making a record of actions.

An accused employee may not merit an extensive disciplinary hearing, though there should always be a disciplinary procedure conducted. Immediate termination of an employee can be a course of action, particularly for gross misconduct.

This termination would only occur after the disciplinary procedure concludes with dismissal for conduct-related reasons.

For example, an employee is stealing from the company. If proven and handled correctly, dismissal from their role would not count as unfair dismissal. 

Naturally, employers should follow a proper disciplinary procedure to avoid trouble in an employment tribunal. This can help an employer establish the facts around the disciplinary or any dismissals.

Along with disciplinary procedures, an organisation must keep track of a disciplinary record.


What is a disciplinary record?


Some companies may, for whatever reason, wish to downplay punishments for an employee's negative actions.

Employers decide what sanction they give at the end of the procedure. However, they must be consistent.

Employers must record any grievances raised that merit

This provides a record for others to refer to. This prevents sole responsibility for the person who conducted previous corrective actions.

This raises the question of whether an employer can record disciplinary meetings in the UK. While there is no legal prohibition of

. They must specify their wish to do so at the start of the hearing.

It is worth noting that although note-takers may be present. The meeting can feature note trackers and consist of multiple people.


How long do disciplinaries stay on record?


Employment law states that a previous employer must provide a factual reference. This will mostly include factual information, such as name and job title, though it can also contain the reason for dismissal.

While employers rarely provide a purely to a future employer, it is possible. Past employers are free to include references to an employee’s past actions.

However, this can result in libel claims if the employer cannot substantiate the information provided. This is why references aren’t too detailed, especially if they are negative.

Employers may choose to reference a disciplinary record. They may do so if they feel they have reasonable grounds to provide details.

For example, if the employee left a company due to gross misconduct, the previous employer may feel it is vital to include.

Therefore, when asking “can a previous employer disclose a disciplinary action”, the answer is yes. However, the reference must not be misleading.

So, a previous employer can reveal records if a future employer wished to request more information.

This answers the question of “is there a time scale for disciplinary records?” when moving from one company to another. However, a company’s own penal procedures will usually outline whether a report is ever wiped clean.

Acas’ guide to discipline and grievances at work is much more clear. The length in which an action remains on an employee’s record varies on the severity of the disciplinary.

For example, for a formal written warning, Acas states that an action should remain on record for six months. However, a final written warning should remain for 12 months, and actions beyond this may remain on their record permanently.

This varies depending on whether procedures adhere to the non-statutory Acas guide. This timescale is a rough estimate to answer how long can a disciplinary last. It also offers an answer to how long should disciplinary records be kept.


Are disciplinary actions confidential?


Of course, an employer can choose to remove records of corrective actions or keep them longer, if they so choose and can justify keeping them.

While this record may remain, the outcome of the disciplinary itself must remain confidential. The only exception would be the employer discussing it with any other employees who were aware of the hearing.

Naturally, this excludes discussions for the wrong reasons, such as gossip. Discussions between members of a disciplinary committee would be acceptable.

But, what is a disciplinary committee?

Simply put, a committee is a body of company representatives that gather to deliver disciplinal actions. They can include supervisors, managers, and even external representatives.

Your employers can discuss actions and hearings with these representatives.


Need help with HR?


Peninsula is no stranger to handling penal actions. Our expert team have handled disciplinal procedures for companies across the world.

For our help with your HR woes, get in touch today by calling our team of experts.

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