Following on from our first instalment of our ‘How to’ guide, which provided guidance on how to run a disciplinary investigation, we now turn to the second step in the process – the disciplinary hearing.
Notification to the employee and invitation to a hearing
The employee must be informed of the decision to progress to a disciplinary in writing. The allegations or charges against the employee should be set out in sufficient detail together with the possible consequences if the allegations are upheld. The employee needs to have enough information to understand the case against them and to prepare their case to answer. Failure on the employer’s part to set out the allegations comprehensively may lead to a finding of unfair dismissal at tribunal.
The notification must include the time, date and venue for the disciplinary hearing. There is no set timeframe in which the hearing must be held, but an employer ought to balance the need to conduct the hearing without unreasonable delay while providing the employee with enough time to properly prepare their case.
The employee has the statutory right to be accompanied at the disciplinary hearing by either a work colleague or a trade union representative and this right must be detailed in the notification. If the employee chooses to be accompanied, they should let their employer know in good time before the hearing. The employee can propose an alternative time for the hearing, if their chosen companion is unable to attend at the proposed time, however the revised date should be within five working days of the date originally suggested.
The role of the companion is, however, limited to addressing the hearing to put and sum up the employee’s case, respond on behalf of the employee to any views expressed at the hearing and confer with the employee during the hearing. The companion cannot answer questions on the employee’s behalf or address the hearing if the employee does not want them to.
In addition to the notification, the employer must provide the employee with all written evidence, including any witness statements, that has been collated or obtained during the investigation and which it intends to rely on in the disciplinary hearing.
Who should be the disciplinary manager?
Where it is practicable, particularly in cases of misconduct, a different person should carry out the disciplinary hearing to the person who was involved in the investigation. However, where an employer’s business is too small to allow for this, the same person may be involved at both stages, but this should ideally be avoided.
Is there a structure to follow for a disciplinary hearing?
There is no set process, but the following might be helpful to ensure that everything is covered:
- Introduce all those present to the employee (which ought to include a separate note taker – usually someone from HR) and explain the reason for their attendance.
- Introduce and explain the role of the person accompanying the employee (if any).
- Explain the purpose of the hearing; which is to determine whether disciplinary action should be taken in respect of the allegations.
- Explain how the hearing will be conducted.
Questioning – the employer should:
- State precisely what the allegations are and outline the case against the employee with reference to the evidence gathered during the investigation.
- Listen carefully and encourage the employee to speak freely so that the facts can be established. Using open ended questions often lead to fuller answers and a better understanding of what has happened.
- Keep the approach formal and polite.
- Once the employee has set out their case and answered the questions put to them, the employer should then reiterate what has been discussed to ensure nothing has been missed or misunderstood.
- The employee should be asked if they have anything further to add.
- The notes taken at the hearing should be shown to the employee and the employee should be given time to read and sign the minutes to confirm that it accurately reflects what was discussed.
Making a decision
- Before deciding whether any disciplinary action is required, adjourn the hearing to allow time for proper reflection, consideration and, where necessary, to check any disputed facts. This may need to be overnight if further investigations are needed.
- Whilst each case is decided on its own merits, taking into account the entire circumstances at hand, the employer should have regard to sanctions imposed in similar situations in the past and the standards of other employees’ behaviour to ensure the employee is not being treated inconsistently.
- The employee’s disciplinary record and length of service should also be considered when determining the sanction to be imposed.
- The decision should be provided to the employee as soon as the decision is made – ideally in person and followed up in writing but, if the hearing was adjourned overnight, in writing alone will be sufficient. This must include details of the employee’s right to appeal the decision and any applicable timeframe.
Employers should be aware of the emotional turmoil that going through a disciplinary process can cause an employee. Should there be any signs that the employee is struggling with the process, or if there could be personal or outside reasons for the misconduct (particularly if it is out of character), the employer should consider referring the employee to any employee assistance programme, where available, or other suitable service as soon as possible, in line with its duty of care to its employees.
Additionally, where the employer is aware that the employee has a disability, it will need to make reasonable adjustments in the lead up to and during the hearing, in the usual way.
An employee may raise allegations against a colleague in the disciplinary process by way of grievance or otherwise. In such cases, it may be sensible to temporarily suspend the disciplinary process in order to deal with the grievance. Failure to do so, could amount to an unfair process given that the employer will not be fully aware of the surrounding situation of which it had notice of, but failed to investigate.
The above guidance is in line with the ACAS Code of Practice. Parties are not obliged to follow the code but are recommended to do so as this can have an impact on the level of compensation a judge may award at tribunal (subject to a maximum 25% uplift/reduction).
Next month we will set out how to run an appeal hearing, the next stage in the process should the employee choose to appeal any disciplinary sanction imposed.