- 13 minute read
- Last updated: 15th October 2019
Under ACAS guidelines, before an employer can dismiss or sanction an employee for a disciplinary issue, the employer should first hold a disciplinary hearing with the employee. The meeting must be managed correctly to avoid allegations that the employer failed to handle the disciplinary process fairly or lawfully. We look at how employers should prepare for a disciplinary meeting.
This article covers:
- The role of the disciplinary hearing
- Arranging the meeting
- Suspending the employee
- Who should attend the disciplinary hearing?
- Questions to ask at the disciplinary meeting
- Tips for leading the meeting
- After the disciplinary meeting
The ACAS Code of Practice sets out standards for employers to meet when managing disciplinary issues. Under the guidelines, a disciplinary hearing should be held as part of an employer’s fair and lawful procedure when handling and investigating a workplace disciplinary issue.
Should an employee bring a claim against their employer, the tribunal will examine whether the employee followed a fair disciplinary procedure and the ACAS code. Where the tribunal finds the employer failed to meet the required standards, it has powers to uplift compensation awards by up to 25%. Likewise, should the employee fail to follow the ACAS guidelines, the tribunal can reduce any award by up to 25%.
The Code applies to incidents of misconduct and poor performance, but not redundancy, dismissals or the non-renewal of fixed-term contracts on their expiry.
If following a fair and thorough investigation, where you can show you have taken reasonable efforts to gather evidence and ascertain the facts, you consider there is a disciplinary case against an employee, a disciplinary meeting should be arranged.
The first step is to set a date and time to hold the meeting in an appropriate location that allows for privacy and confidential discussion. Your organisation’s disciplinary policy may stipulate guidelines on the date for the hearing to take place. Depending on the complexity of the matter, five working days’ notice for a disciplinary hearing would generally be considered reasonable but in any event, there should be no unreasonable delay while allowing sufficient time for you and the employee to prepare for the meeting. 24 hours notice, for example, is unlikely to be regarded as reasonable.
If the employee is disabled, you should ask if any reasonable adjustments need to be made to the arrangements.
You should then provide the employee with formal, written notification of the disciplinary meeting. In the letter, you should include the details of the hearing time, date and location. The notification should also detail each of the allegations facing the employee, provide copies of evidence that will be referred to or relied on, inform of the employee’s right to be accompanied and also explain the potential sanctions or disciplinary they could face, such as a formal warning or dismissal.
In many disciplinary cases, particularly in relation to alleged acts of gross misconduct, employers may consider whether suspension of the employee would be appropriate.
Suspension – even where on full pay – can give cause to unfair dismissal claims or if an employee resigns as a result of the suspension they may be able to claim constructive dismissal. As such, suspension should not be used as an immediate response and any decision to suspend an employee must be taken carefully.
If suspending an employee, you will need to be able to show you acted reasonably in the circumstances and that the suspension did not breach the implied terms of trust and confidence under the employment contract.
This could mean the decision to suspend the employee was due to reasons such as allowing for a fair investigation to take place or to protect other employees while the disciplinary process is pending, where alternative solutions such as changing the employee’s working hours or location temporarily would not be appropriate.
Where you do take the decision to suspend, it should be made clear to the employee that this is not a punitive measure and that the investigation process remains fair and open for an informed decision. You should maintain contact with the employee, reviewing the suspension and to arrange the return to work when appropriate.
Precisely who should attend the disciplinary meeting will in large part depend on the individual disciplinary case and the business itself but could include:
- An independent meeting chair – this should be a manager not involved in the issue or an external consultant
- The employee subject to the disciplinary action
- HR department representative
- The employee’s line manager
- A member of staff who will minute the meeting
- Trade union representative accompanying
- Witnesses called by the employer or employee
Employees have the right to be accompanied by a work colleague, trade union representative or official employed by the trade union where they are facing disciplinary action as a potential outcome of the hearing. You should make them aware of this right when notifying of the date of the hearing. It is at your discretion whether to allow the employee to be accompanied by a family member or friend.
Those accompanying the employee can support with presenting the employee’s case, they can make statements and ask questions on the employee’s behalf, take notes for the employee and provide moral support. They cannot however answer questions for the employee.
The disciplinary meeting should be used to discuss the allegations with the employee and to allow the employee the opportunity to respond to the allegations, put forward their case and ask any questions they may have.
The questions you ask will determine in large part the impact of the disciplinary meeting and your ability to make a fair and informed decision on the matter. The specific questions to ask will depend on the individual circumstances of the issue but could cover the following:
Confirmation from the employee regarding the disciplinary procedure and their rights
The employer should clarify that they have done everything possible to make the employer aware of the disciplinary procedure, what is deemed unacceptable behaviour, and what their rights are as an employee.
- Does the employee know why they are at the disciplinary meeting and the possible consequences?
- Has the employee received details in writing of the accusation made against them?
- Has it been made clear to the employee of the possible disciplinary consequences, e.g. whether the accusation could lead to a warning, demotion or dismissal
- Do they understand the accusation being made against them?
- Has the employee been given access to the disciplinary procedure?
- Are they aware that the behaviour connected with the disciplinary investigation is unacceptable?
- Are they aware of their rights as an employee, for instance, to be accompanied to the disciplinary meeting and appeal the decision?
- Do they feel that have been given sufficient time to prepare for the disciplinary meeting?
The employee’s response to the allegation(s)
The exact questions to be asked will depend on the kind of accusation that has been made, whether as a result of a grievance from another employee, an issue with the employee’s conduct or performance or if there is alleged gross misconduct.
The employee should be asked whether they feel the accusation is valid. Was their conduct unacceptable? Do they feel they are underperforming? Are there mitigating circumstances as to why the situation occurred, for instance, tiredness or ill health leading to making a mistake.
Alternatively, do they disagree with the accusation?
Ask the employee to explain the events that have led to the accusation. What happened? Who was present? What were the repercussions?
Ask the employee to present any evidence they have gathered or call witnesses to support their case. The employee must be given the opportunity to give their side of the story, whether that is to deny the accusation or explain why they behaved in an unacceptable way.<
In answer to evidence
During the meeting, it will be important to examine any witness statements and all other relevant evidence. As you work through the evidence, it may become necessary to ask corresponding questions.
For instance, where CCTV footage is used, “Were you aware of this CCTV camera?” or in answer to a witness, “Can you confirm that your colleague said this to you?”.
Witnesses can also be called to the meeting, and be questions on their recollection of events to help provide further clarity and perspective on the allegations.
Employee’s final comments
At the end of the meeting, once all the evidence has been examined and all questions asked and answered, the employee should be asked if there is anything more they would like to add or ask.
This gives the employee the opportunity to react to any evidence or questions that came up during the meeting.
Do not underestimate the importance of taking contemporaneous notes during the meeting. Record the questions that were asked, who asked them and what the response was. Where possible, this responsibility should be assigned to someone who will not be involved in the meeting to ensure focus on the requirement.
Should the matter escalate to a tribunal, the notes may be relied on as a record of the discussion. At the end of the meeting, give the employee the opportunity to check the minutes and sign and date to confirm their agreement.
In most cases, it would not be possible for either party to insist on recording the meeting on an electronic device, unless both the employer and employee agree (for example if this would support a request for a reasonable adjustment for a disabled employee) or if there is provision for recording within the organisation’s disciplinary policy.
Consider your questioning
Try to make your questioning open-ended to allow the employee to explain and provide detailed responses: “Could you explain what happened… tell us about…”. You want to be satisfied you have a full response before moving on to the next question.
Try to keep the atmosphere professional and curteous, avoiding hostility, aggression and putting pressure on the employee. Also try to stay open-minded and avoid asking leading questions or assuming the answer before it’s given.
Listen to the responses as while you may have a pre-prepared set of questions, the employee’s answers may give rise to new questions to examine.
Disciplinary meetings can become stressful for the employee and if necessary, you can pause the session to allow for a short break to recompose and refocus to the matter at hand.
Closing the hearing
The employee should be given the opportunity to confirm that the notes made during the disciplinary meeting are a true reflection of what was discussed. A copy of this record should be forwarded to the employee.
It may be necessary to ask for further information or clarification before a decision can be made. In this case, the investigation will continue and a future disciplinary meeting may need to be arranged.
If all parties are satisfied the hearing has finished, you should adjourn to consider the evidence and come to an informed decision. It is generally not advisable to make a decision at the close of the actual hearing as this may indicate a pre-conceived decision and could give rise to allegations of unfair procedure.
The decision on the matter should be made without unreasonable delay following the hearing. This should be confirmed to the employee in writing, whether the decision is in the employee’s favour or if it is against the employee. The notification should detail the outcome and any disciplinary action or sanction that will be taken, for instance, a formal warning, demotion or dismissal.
The letter should also specify the process to appeal the decision should the employee disagree with the decision, if they feel they have been treated unfairly or if they believe the disciplinary process was in any way conducted incorrectly.
The appeal process should focus specifically on the grounds for complaint identified by the employee and why the employee feels this led to an unreasonable decision and disciplinary action. If the employee has raised concerns about procedural unfairness in the original investigation and hearing, there may need to be a rehearing to discuss the case again.
Do you need help with a disciplinary hearing?
Even in the most perceivably clear-cut of cases where there appears to be overwhelming evidence against an employee to justify disciplinary action, employers must proceed with care. Where a fair process is not followed, the employer is at risk of rendering the disciplinary process unlawful, potentially giving cause for a claim for unfair dismissal.
DavidsonMorris are experienced employment law and HR specialists offering guidance and support to employers in relation to disciplinary proceedings including workplace investigations and hearings. We can also act as an independent chair to ensure impartiality in any disciplinary meeting. For guidance and support in handling disciplinary issues, contact us.