Top considerations for choosing a fair sanction

Aug 23, 2021 | Disputes

We have discussed the disciplinary hearing process, how to handle witnesses and the burden of proof in a case but it is also important to ensure you choose a fair sanction as a penalty for the misconduct or capability issue.  Having an aggrieved employee in any business can cause problems but in a small business, it can have a dramatic impact on morale and productivity levels. Here are some factors to take into account when choosing an appropriate level of sanction.

Thorough investigation

Although this may seem obvious, it is important to ensure a thorough investigation has been conducted.  If new evidence comes to light, in the disciplinary hearing, that could impact the sanction you will need to adjourn the meeting until this has been explored and examined.

Good record keeping

Making sure you have the appropriate evidence, where possible, to justify a sanction is essential.  This will not only be a double check for fairness and consistency but can affect an appeal or even a similar case on future employees.

Be aware of the sanction levels

Your disciplinary policy should have levels of warning set out, which could be as follows:

  • A verbal warning – an example reason could be lateness.
  • First written warning – an example reason could be unauthorised absence.
  • Final written warning – an example reason could be a serious breach of health and safety rules.
  • Dismissal with notice – an example reason could be further misconduct where previous warnings have been issued.
  • Summary dismissal without notice – this would be for a gross misconduct offence, an example could be theft or fraud.

Some policies have a verbal warning as a first stage, however a disciplinary sanction given in line with the disciplinary procedure should still be confirmed in writing.

You should have a list of gross misconduct examples in your disciplinary policy but remember that these are not exhaustive and the sanction should be determined on the disciplinary matter being heard.

Be aware of any specific rules within your policy

Depending on your industry, you may have specific regulations and rules that if not followed correctly, could severely impact your current and future business.  Certain sanctions may be escalated to the next level because of this therefore do be mindful of your own disciplinary policy when deciding.

Acknowledge the employee’s previous record

The employee may have a previous warning on their file, either for the same issue that they are in the disciplinary meeting for, or for a different issue.  If this warning is still ‘live’ (check the expiry time on the previous warning letter), this may increase the reasonable sanction but it would not usually be reasonable to take into account any expired warnings

‘Jumping’ levels of warning

Although you would normally issue a higher level of warning where the employee already has an active warning, it is perfectly reasonable to ‘jump’ levels if the conduct is sufficiently serious, and this would normally be mentioned in your disciplinary policy.

Be consistent

Precedence that are set with a previous employee do need to be taken into account for future sanctions placed on future employee disciplinary cases.  In small businesses, employees are more likely to be aware of the ins and outs of previous disciplinary cases so it’s best to be consistent to avoid appeals or unfair dismissal claims.

Consider mitigating factors

There may be mitigating factors that contributed to the employee being called to a disciplinary.  These have to be considered and taken into account, especially if the employee has been exemplary before this incident.  This could range from provocation from another individual, the employee’s experience, position or length of service and their previous conduct.

Health and disability could be a mitigating factor and could leave you on shaky ground in an appeal or employment tribunal if you have not considered this before making a decision.

No sanction is an option

A business may decide that no sanction is appropriate either due to lack of evidence, the incident not being serious enough or that training and guidance would stop the matter from reoccurring.  This would still need to be communicated in writing to ensure there is a record of this and there needs to be full awareness of precedence setting.

In summary, being consistent, having all the evidence, knowing your own policies well and taking into account additional factors that are individual to the employee will help you come to an appropriate sanction.


If you would like more information and/or advice about disciplinaries and understanding appropriate sanctions, please get in touch.