Alternative disciplinary sanctions letter

It’s possible to impose a disciplinary sanction other than dismissal on an employee provided you’ve the contractual right to do so and the sanction is only temporary.

Usual disciplinary sanctions

The Acas Code of Practice on Disciplinary and Grievance Procedures indicates that the usual sanction in disciplinary cases will either be a written warning, a final written warning or dismissal, depending on the stage of the procedure you’re at and the seriousness of the employee’s misconduct. For example, if an employee’s first misconduct is sufficiently serious, it may be appropriate to move directly to a final written warning, and acts of gross misconduct may call for dismissal without notice for a first offence. The accompanying Acas Guide on discipline and grievances at work then states that the employment contract may allow for a different disciplinary penalty instead.

Contractual right or agreement

The Acas Guide makes clear that any alternative sanctions may only be applied if allowed for in the employee’s employment contract or with their express agreement. This will particularly be the case where the sanction involves any loss of pay for the employee. This is because, unless this is either authorised by the employment contract or agreed, such a sanction would be likely to lead to an unlawful deduction from wages. In addition, any alternative sanctions could give the employee grounds to resign and claim constructive dismissal if you don’t have the contractual right or their agreement to apply them. Although it’s extremely rare for alternative sanctions to be applied, they can be useful, particularly in gross misconduct cases where there are mitigating factors (so you don’t want to dismiss) and a financial or similar penalty is seen as an effective way to turn the employee’s conduct around. The alternative sanction might also be imposed alongside a final written warning.

Letter contents

The Acas Guide says that the alternative sanction should be confirmed in writing, and the procedure and time limits for appeal set out clearly. This is what our Alternative Disciplinary Sanctions Letter does. Closely following the “Alternatives to dismissal” section of our Disciplinary Procedure (which is specifically expressed to form part of the employee’s employment contract), we’ve provided for you to select from these alternative sanctions: a period of suspension without pay; loss of seniority, by not being eligible for any promotion; pay reduction; loss of pay increase; loss of bonus; loss of overtime; and transfer to another job or department. In each case, the sanction is for a set period, i.e. it’s temporary and not permanent, so as not to breach the implied term of mutual trust and confidence. Demotion as an alternative disciplinary sanction is covered in our Disciplinary Demotion Letter. Only consider imposing an alternative sanction in very exceptional cases where the circumstances warrant it and make sure it’s specifically authorised by the employee’s employment contract, or that they’ve separately agreed to it in writing, and still provide a right of appeal. Issuing warnings/implementing dismissals should remain the “norm” for misconduct offences.