Written by Keith Williams, Associate Director and Sophie Askew, Solicitor, Employment and Employee Benefits Department, Greenwoods Solicitors LLP
Following on from our last article* on managing investigatory meetings, we now take a look at conducting the disciplinary hearing. The investigation will determine whether disciplinary should be taken. However, it is the hearing that will determine what action is appropriate and will be crucial in establishing whether any dismissal is ‘fair’.
The key elements of a good disciplinary process are outlined below:
Invitation to disciplinary hearing
If the investigation produces enough evidence proceed to a disciplinary hearing, this should be confirmed to the employee in writing together with an invitation for the employee to attend a hearing. Sufficient notice should be given to the employee to allow them prepare to answer to case against them.
Setting out the allegations and possible consequences
To allow an employee to prepare for the disciplinary hearing, the specific allegations against the employee must be set out clearly. The allegations may have changed since the investigation commenced, and if so, this should be clearly communicated. A dismissal may be unfair if it is for a reason or allegation the employee was not aware of.
The employer must also make clear what the consequences of the disciplinary hearing may be. If dismissal is a possible outcome, this should be clearly set out in the invite letter in advance of the hearing.
Both of these principles are supported by Acas in its Code of Practice on Disciplinary and Grievance Procedures (‘the Code’).
Documentary evidence and witnesses
All evidence relied on by the employer should be disclosed to the employee in advance of the hearing. This will allow the employee to place the allegations in context and to challenge the evidence. Withholding evidence will undermine the fairness of a dismissal and leave the process open to challenge.
The Code states that an employee should be given a reasonable opportunity to call relevant witnesses. Where the employee, or the employer, intends to call witnesses to give evidence at a disciplinary hearing, advance notice should be given to the other party. There is no right for an employee to cross examine witnesses, but any request to do so should be considered reasonably by the employer.
The right to be accompanied
The employee should be offered the right to be accompanied to a disciplinary hearing, by either an accredited trade union representative or another of the employer’s workers, and this should be set out in the invite letter.
Requests to bring other companions (e.g. a family member) should also be considered by the employer and looked at in a reasonable manner, particularly if the employee suffers from a disability, as allowing an alternative companion may be a reasonable adjustment for an employer to make.
There is no general right to allow for legal representation at disciplinary hearings. However, there may be circumstances where this is appropriate and, if a request is made, specific advice should be sought on this point.
Where the companion is not able to attend the employee has the right to suggest an alternative time for the hearing, which should not be more than five working days later.
Although the role of the companion at a hearing is limited, the Code does say that it is good practice to allow the companion to participate as fully as possible. If an employer feels that the companion is answering questions on behalf of the employee, it is within its rights to request the employee to answer questions directly.
The disciplinary manager
The disciplinary hearing should be conducted by someone with authority to impose the potential sanction against the employee, and who is independent from the allegations and the investigation.
Adjourning the hearing / further investigation required
Once the evidence has been considered, the hearing should be adjourned to allow the employer to consider its decision. The employer may feel that it needs further time to consider the evidence and make its decision, in which case the employee can be informed that the decision will follow in writing.
In some cases, issues may come to light which need further investigation. Any new evidence should be presented to the employee and they should be given the opportunity to challenge any evidence/allegations they were not aware of before.
The outcome of the disciplinary hearing
Before deciding to dismiss, the employer must be satisfied that it has a genuine belief, based on reasonable grounds, that the employee is guilty of misconduct, and that the decision to dismiss is fair and reasonable in all the circumstances. The employer must also consider whether any sanction other than dismissal may be appropriate.
Other than in cases of gross misconduct, the Code states that employees should be given at least one chance to improve before receiving a final written warning. The employee should be told how long any warning will be ‘live’ for and what the consequences will be if they commit any further misconduct during this period. Warnings should be drafted so they can be taken into account in respect of any future act of misconduct, and not just a repeat of the specific misconduct it was issued in relation to.
Demotion should only be considered where there is a clear contractual right to demote an employee without their agreement otherwise an employee may claim unlawful deduction from wages, or ‘constructive dismissal’ due to breach of contract.
The outcome of the hearing should be communicated in writing, confirming the reason for the decision in respect of each allegation and, if the employee is to be dismissed, specifying the last day of employment.
The decision letter should also make clear how the employee can appeal the decision, including who the appeal should be addressed to and any time limits in place.
* See Managing disciplinary investigations – what employers need to know
The information contained in this article is intended to be a synopsis only. In particular, employers should have specific regard to its own disciplinary policy. Before acting on it you should take professional advice.
Written by Keith Williams, Associate Director and Sophie Askew, Solicitor
Employment and Employee Benefits Department
Greenwoods Solicitors LLP
Monkstone House
City Road
Peterborough PE1 1JE
Tel: 01733 887700