Help available if you're involved in a disciplinary matter

If you're told you are going to be involved in a disciplinary process, read the following information and contact us without delay. 

Alternatively, you can contact us by completing this form. Provided you were in the correct category of membership at the time of the incident, we will help you prepare your case and support you through the process.

• If you are asked to provide a statement for a workplace investigation, follow our statement writing advice. You can call us to arrange for it to be checked before you hand it in.
• If you are called as a witness for a disciplinary hearing, read the disciplinary policy in your workplace. Your human resources department (HR) should also be able to give you some support. If you are concerned that being a witness in the hearing could result in any action being taken against you, then you should contact us. Read our advice for witnesses.
• If you are in the UK on a visa and are facing disciplinary action, contact us for help from our Immigration Advice Service.
• If you are considering resigning from your job during the disciplinary process, discuss your options with us before taking any action.

If you have been suspended, please contact us. Your employer should give you a clear reason for the suspension and follow any policy they have in place governing the suspension. If you are suspended because of a disciplinary matter, you are entitled to know what the allegations are. 

Pay

A suspension should not imply guilt and, if you are a suspended employee, this should be on full pay. The only exception to this is if there is a clause in your contract that says your employer can suspend you without pay. 

If you are an agency or bank nurse you may not be entitled to pay whilst suspended. Check your contract and local policies.

Length of suspension

Your employer needs to act quickly and keep the suspension period to a minimum. They should also keep the suspension decision under review.

Speaking to colleagues

Usually employers will state that you cannot speak to your colleagues/clients during the period of suspension, and this is considered to be reasonable. If you want to speak to colleagues or clients as part of being able to respond to allegations, then you should ask your employer for permission. Alternatively, you may be able to suggest to whoever is conducting the fact finding investigation, the names of anyone who may be able to assist the investigation or be a witness. 

While you are suspended, your RCN representative can contact specified colleagues to help you prepare your case, where appropriate. 

Other work

If you hold a second contract with another employer, you are not automatically suspended from this role. However, you may need to inform your second employer that you have been suspended. You should check your contract of employment with the suspending employer, as it may have clauses specific to this situation.

The Nursing and Midwifery Council (NMC) Code places a professional obligation on you to inform any employers you work for if your fitness to practise is called into question.

We advise that you do not seek alternative work whilst suspended.

As an agency worker, you are employed by the agency and not the hiring organisation, therefore you would be subject to the agency's disciplinary procedure. The agency should have a fair and transparent disciplinary procedure, and you have the right to be accompanied by a co-worker or a trade union representative at disciplinary hearings.  

It is common for the hiring organisation to block agency workers from booking shifts while a disciplinary procedure is ongoing. However, there is no obligation for the hiring organisation to lift the block even after the procedure has completed. 

Read more about agency workers.

Your employer should have written procedures for handling disciplinary situations. It is very important that you read these.

Your employer should be fair and reasonable when conducting a disciplinary and should follow the ACAS Code of Practice on Discipline and Grievance. In Northern Ireland, please see the Labour Relations Agency's Code of Practice on Disciplinary and Grievance Procedures.

Your employer's policy will outline the detail, but generally the process will be as follows:

• your employer will carry out an investigation to establish the facts
• they'll notify you of the issue/problem
• they'll hold a meeting with you to discuss the issue/problem (without undue delay and with enough time to enable you to prepare your case). You'll be allowed to be accompanied at this meeting, by either a fellow worker or your union representative
• they'll decide on what action to take against you - if any
• they'll provide you with the chance to appeal their decision.

It's important to keep a record of any instances where your employer fails to follow local guidance or best practice codes. Your employer's failure to adhere to agreed policies, practices and procedures could provide you with grounds for appeal. Try to keep all correspondence and any notes of meetings as this may prove helpful later.

After the investigatory stage you should be told in writing whether a disciplinary hearing has been arranged.

The letter should outline:

• the issues and possible penalties
• where and when the hearing will take place
• the names of any witnesses
• your right to be accompanied.

You are also entitled to all of the information and documents relating to the case, in advance of the hearing. 

Your availability

You should make every effort to attend the original hearing date. If you have a legitimate reason why you cannot attend, you can request a postponement. A legitimate reason might be that you have not been given enough notice to meet with your representative and prepare your case, or your representative is unavailable on the proposed date. The alternative date must be reasonable and within five working days of the original hearing date (beginning the day after). Working days for this purpose exclude Saturday, Sunday and public holidays.

If you are off sick and cannot attend the first hearing, obtain a medical certificate and/or support from occupational health, where possible. Your employer should pause the disciplinary procedure until you return to work, or Occupational Health deems you fit to partake in the hearing.

At the hearing

The hearing panel usually consists of a chairperson (senior manager), a human resource (HR) adviser and possibly a note-taker. In the NHS, the investigating officer may present the findings to the panel. The location should be private with no interruptions.

The hearing itself will follow this basic structure:

• The chairperson should introduce those present and explain the purpose of the hearing.
• Management will outline their case then listen to your defence. You can refute any allegations or statements, ask questions, present evidence and question witnesses.
• Your representative (or chosen companion) is entitled to address the hearing panel and ask questions on your behalf. They can address the hearing, challenge any inaccuracies or procedural errors, present mitigating circumstances and sum up your case. You can confer with them during the interview (somewhere private) and they can address the hearing panel. You representative does not have the right to answer on your behalf.
• You should also be given the opportunity to call relevant witnesses, ask questions and challenge or raise points about any information provided by witnesses. If you intend to question any witness or if you refute the witness statements, you should notify management beforehand.
• The panel will consider the evidence presented, the facts, any mitigating or contributory factors and whether a disciplinary penalty is justified.

After the hearing

You should be provided with the opportunity to agree the notes or minutes of the hearing before they are finalised.

You should be informed in writing of the hearing outcome and the grounds for the decision. 

Your employer's policy will outline the range of penalties or sanctions that could be imposed.

Informal cautions, advice, counselling or mediation should normally precede formal warnings. Formal sanctions can range from verbal warnings to summary dismissal for serious cases. 

Details about any sanction you are given, including how long it will remain on your record, should be confirmed in writing. It should be consistent with local policy and similar cases. Time limits for any appeal must also be set out clearly.

Verbal warnings	A verbal warning gives you notice that your performance needs to improve, or that certain behaviour/conduct needs to change. Verbal warnings are usually given for minor issues like persistent lateness or absenteeism. They still form part of the disciplinary process and are kept on file for a specified time. You may be required to sign something to say you have received the verbal warning.
First written warning	A first written warning should be kept on file and may be used as a basis for review and/or monitoring performance or conduct for a specified period. Formal warnings should set out the performance or conduct issues identified, any changes you're required to make, the time frames for that to take place, and any support or training that the employer will provide. You should be told how long the warning will remain active and the consequences of further misconduct, or failure to improve performance, within this time. It should be made clear that failure to make the required improvements could lead to a final written warning and ultimately dismissal. Between the first and final warnings, the employer can extend performance review periods for justifiable and specified reasons.
Final written warning	This is usually the last stage before demotion or dismissal. Your employer is entitled to consider dismissal if your unsatisfactory performance/conduct continues or further incidents occur. In cases of serious misconduct or poor performance, the employer can go straight to a final written warning; they do not have to give a first written warning.
Dismissal	A dismissal occurs when your contract is terminated by your employer. The decision to dismiss should be made by senior management and you should be informed in writing as soon as possible. Before considering dismissal, the employer should review all aspects of your case, alongside your general employment record, to decide whether the penalty is reasonable in the circumstances. You should be given the reasons for the dismissal and the date the contract will terminate and be provided with information about your right of appeal. If you disagree with the dismissal, you should discuss your options with your representative. You may have grounds for appeal, a grievance or a tribunal claim.
Summary dismissal	Summary dismissal may occur in serious cases of gross misconduct and results in dismissal without notice. This could also result in an NMC investigation and pose a risk to your professional registration. If you are referred to the NMC, please contact us.
Other sanctions	Alternative disciplinary penalties can be imposed, such as transfer to another area, suspension without pay, demotion, or loss of increment (often known as action short of dismissal). Such penalties can only be imposed if allowed for in your contract or your employer’s local policy.

The outcome letter from your hearing and employer’s local policy will outline the time limits for you to submit an appeal. You need to ensure that your appeal is submitted, in writing, to your employer within this time frame. You will be expected to include the reason for your appeal. Possible grounds of appeal are:

• the finding is unfair
• new evidence has come to light
• the procedures were not used consistently or correctly.

The appeal should be heard by a higher authority than the original hearing panel and presided over by someone not previously involved. You should be notified in writing of the outcome of the appeal hearing.

In the case of small organisations (fewer than 20 staff) the manager may have to chair the initial hearing and the appeal, but must endeavour to act as impartially as possible.

You have a statutory right to be accompanied at appeal hearings.

Within the NHS, the fast-track disciplinary process may be used to manage cases of alleged misconduct in a timely manner, cutting out any unnecessary procedural steps and hopefully reducing levels of anxiety for the employee and potential witnesses. It is important to note that it cannot be used in cases of gross misconduct or any other matters where dismissal may be a possibility.

The process may also be used where the employee has admitted misconduct or where there is sufficient evidence to prove an allegation.

If you are in England or Northern Ireland, the fast-track process, including when it can be used, should be outlined in your Trust’s disciplinary policy.

In Wales, guidance is outlined in the All Wales Disciplinary policy for Agenda for Change Staff.

For members in Scotland, please see your local policy for guidance on the early resolution process which if, applicable, may be used to prevent matters moving to a formal stage.

There are very rigid time limits for submitting claims to an employment/industrial tribunal. For most claims this is three months less one day from the date of the incident, e.g. act of discrimination/dismissal — this is called the limitation date. It is vital that you seek our advice as soon as possible, and at least six weeks before the expiry of the limitation date. This enables our legal team to assess any potential claim and advise you whether we can support you in good time. 

Read our advice on employment tribunals for more.

In England, Wales and Scotland, in order to bring a claim in the tribunal it is obligatory for all claimants to notify their tribunal claim to ACAS for a process of early conciliation. For more information see ACAS early conciliation and speak to your RCN representative for advice.

In Northern Ireland, the pre-claim conciliation service operates in a similar way, and you should seek advice from us as soon as possible. Find out more from the Labour Relations Agency. 

Discipline and grievance procedures are closely linked. If you want to raise a grievance during the process, it may be appropriate to suspend the disciplinary procedure for a short period to allow the grievance to be considered. In cases where the disciplinary and grievance are related, both may be heard together. Please discuss this with your RCN representative before taking any action.

Read our information on grievance.

Principles 

The information kept within your file should be;

• factual, accurate and unbiased
• secure, relevant, and not kept for longer than necessary.

Contents

Your personnel file can contain your;

• job application, CV, offer letter, job description and contract
• emergency contact information
• education, training and past employment information 
• payroll and benefits information (but not bank details)
• performance/appraisal forms
• disciplinary action reports (including informal/verbal warnings)
• employee resignation letter and exit interview documentation.

If there is an expiry date on any warnings or sanctions, then once spent, they should not be used to influence future warnings or disciplinaries. You should refer to your employer’s disciplinary policy. 

The information kept should not include:

• opinions and/or unfounded allegations
• supervisor’s notes that are being used to try and improve performance (these should be kept as part of the supervisor’s file)
• medical information (this should be kept within medical records and stored securely)
• investigatory information (this should be kept separately in an investigation file).

The contents of your personnel file are accessible by you, personnel/HR staff and your manager. 

You can request to see your file at any time. If you are refused, you can make a Subject Access Request (SAR) to your employer to request to see the file. 

The Information Commissioner's Office (ICO) has a template letter.

If there are issues with work conduct or performance, the disciplinary procedure should be followed as detailed within this guide and your employer’s local policy. A formal sanction can then be kept on your personnel file, but you have the right to see it, and as part of the process, you can appeal this.

If the misconduct or performance issue was found to be small and not serious, your employer might have an informal talk with you. Your workplace might call it a 'verbal warning'. ACAS advise that an employer can keep a confidential written record of informal or verbal warnings for future reference. You may be required to sign something to say you have received the verbal warning. Warnings (including informal and verbal warnings) should not be kept on your personnel file without following a clear process. Check your employer’s disciplinary policy and procedure carefully.

When to contact us?

• ask to see your file
• assess the contents based on the principles within this guide.

If you think that you would like to challenge the content, or if you think you have been treated unfairly, contact us for advice. 

ACAS Code of Practice and Discipline and Grievance - describes the basic steps that an employer should follow when handling disciplinary issues.

Labour Relations Agency - Non departmental public body responsible for improving employment relations in Northern Ireland.