In my last column, I shared the best practice way to undertake a disciplinary investigation.
It was for when you get that call that your employee is alleged to have done something and you need to find out if, where, what and when.
This time I want to share how to actually conduct the disciplinary hearing itself.
Again, I would draw your attention to the ACAS Code of Practice on Disciplinary and Grievance Procedures which sets out the requirements for a fair disciplinary procedure Acas Guide on discipline and grievances at work and remind you that failure to follow this code can make an otherwise fair dismissal unfair and even increase any award at tribunal if the tribunal considers it is ‘just and equitable in all the circumstances to do so.’
So, what do you actually need to do and say within a disciplinary hearing?
Here’s my step by step guide
1. The disciplining officer is appointed. They must be someone who has had no involvement in the incident so far. The investigating officer hands over to them their report of the investigation and their recommendations.
2. A letter is sent to the employee to invite them to the hearing. This letter will:
- Provide the employee with full details of the allegations made
- Provide copies of relevant statements and paperwork
- Advise the date, time and place of meeting
- Advise statutory right of accompaniment – colleague or trade union representative.
- Give a minimum 1-3 days’ notice of the meeting dependant on complexities to allow the employee chance to prepare
- Say who else will be present at the hearing.
- State possible outcomes if disciplinary action is taken.
- State how the employee should contact the disciplinary manager to confirm attendance and whether or not they will be bringing a companion with them.
3. The disciplinary officer should prepare questions in advance of the hearing and ensure that they have a complete pack of all the notes and letters related to the investigation. They should also review the file of the employee to see if there are any live cautions on file for similar types of incidents
4. At the hearing itself, the disciplinary officer should welcome and introduce all parties and their roles within the meeting (if the employee brings a companion, please see guidance at the end) then proceed as indicated below
- If the employee does not have a companion with them, the disciplinary officer should ask them if they are happy to proceed without and this should be documented within the minutes.
- Read the allegation out exactly as it appears on the letter of invitation to the hearing and explain that they are here to discuss the allegation; listen to the employee’s response and decide what, if any action under the Company’s Disciplinary Policy is appropriate.
- Ask the employee if there are any accounts/statements included in the invitation pack that they disagree with. If there are, ask why they disagree.
- Ask the employee to recall in their own words what happened on the day
- Explain the seriousness of their alleged behaviour (safety, legal, etc.) and ask if they understand.
- If there is a history of similar behaviour, ask why there has been a repeat/failure to maintain expected behaviour.
- Ask the employee if they have any mitigating circumstances for their alleged behaviour that they would like taken into consideration.
- Ask if the employee has any final comments before the disciplinary officer adjourns to make their decision.
- Explain that the meeting will adjourn in order for the disciplining manager to make their decision.
- Adjourn the meeting and note the time of adjournment.
5. The hearing must be conducted in good faith, having regard to the principles of natural justice i.e. the outcome must not be prejudged or biased
6. Where there is no action to be taken this will be explained to the employee and this followed up in writing.
Note – If the employee is being accompanied it must be an individual who is either a fellow employee, a trade union representative or an official employed by a trade union. The companion is permitted to put the employee’s case, sum up that case, respond on the employee’s behalf to any view expressed at the hearing and to confer with the employee during the hearing. However, the companion has no right to answer questions on the employee’s behalf, nor to address the hearing if the employee indicates at it that he or she does not wish the companion to do so. If the companion is not available at the original date you should rearrange to another time that falls within a period of five working days of the original date
7. Where there is a disciplinary sanction to be given, the disciplinary officer should decide upon appropriate sanction (after an adjournment to consider the facts). Sanctions include a Written Warning (normally 6 to 12 months validity), a Final Written Warning (normally 12 months validity) or dismissal (with or without notice depending if gross misconduct or not). Demotion and loss of pay may also be considered. This will be confirmed in writing.
8. Finally the employee must be advised of their right of appeal against the decision and how that must be done (Five working days from receipt of the outcome letter for instance).
So that’s the hearing, what happens if they appeal? Come back next time to find out.
For more help and advice about disciplinary issues contact us at www.threedomsolutions.co.uk or follow us on twitter @3domSolutions