Seven things to consider when deciding on a disciplinary penalty

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If, following a thorough investigation and a fair disciplinary hearing, an employer concludes that disciplinary action is needed, the next step is to consider a disciplinary penalty. The employer should ensure that its decision on what sanction to impose is fair and reasonable in the circumstances.

Once the employer has come to a conclusion on what disciplinary action it will take, it should inform the employee of the decision, the reasons for it and the employee’s right to appeal.

Here, we look at seven things you need to consider before deciding on an appropriate disciplinary penalty.


1. Take into account the nature and seriousness of misconduct or poor performance when deciding on a penalty.

What should an employer take into account in deciding if, and what, disciplinary action is merited?

Can an employer dismiss an employee for a one-off act of poor performance?


2. Be aware that you can give a final written warning for a “first offence” if this is appropriate.

When an employee is issued with a formal warning, should the employee be required to sign and return a copy of the warning letter?


3. Only dismiss the employee if it is a reasonable response in the circumstances.

Is there a set number of warnings that an employer must give an employee prior to dismissal?

Do employers need to consider alternative work before dismissing an employee who is underperforming?


4. Take into account any rules or guidance in the disciplinary policy or employee handbook on which penalties apply in particular circumstances.

Why is it important for employers to have clear disciplinary rules and procedures?

Which areas should be covered in a company’s disciplinary rules?

What are the pros and cons of making a disciplinary procedure contractual?


5. Investigate the employee’s disciplinary record and take any live warnings into account.

For how long should warnings for poor performance remain “live”?

Can the time period for which a warning is active be “paused” when a woman goes on maternity leave and then “resumed” afterwards?

Can expired warnings be taken into account when deciding an appropriate penalty during subsequent disciplinary proceedings?

Where an employee is given a warning for a particular conduct issue, but then commits a different type of misconduct, can the employer move to the next stage of the disciplinary procedure to address that issue or must it start a separate procedure?


6. Consider what penalties were imposed on other employees in similar circumstances and be consistent when deciding a penalty.

Is an employer obliged to impose the same disciplinary action where two employees break the same rule?


7. Take into account whether or not there are any mitigating factors, such as a good disciplinary record, health issues or provocation.

How should an employer deal with a situation in which an employee’s performance or attendance is affected by elder care responsibilities?

This checklist is based on XpertHR’s guide to deciding on an appropriate disciplinary penalty. If you are an XpertHR subscriber, you can view the full guide here.

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