When to Hold a Disciplinary Hearing?
It is almost inevitable that disciplinary issues will arise from time to time. For most people, confronting bad behaviour is unpleasant and stressful, and it can be tempting to let problems slide to avoid having to deal with them.
This is the wrong approach, and by allowing small issues build up, problems can stagnate until you are left with a difficult problem which could have been nipped in the bud much sooner.
Often problems can be dealt with informally. For most minor things, such as an employee who comes in 5 minutes late every day, an informal chat can help to sort things out. If you choose to approach matters informally, you should still keep clear notes of any meetings and any agreed outcomes.
What is a Disciplinary?
When an employee’s conduct falls below the standard that you expect, you may decide that formal disciplinary action is appropriate.
The approach will often depend on the seriousness of the alleged misconduct. In cases of alleged serious misconduct (such as an employee who has threatened to beat up a colleague), you may want to consider suspending the employee with pay while the matter is being investigated. Suspension should be for the shortest period of time possible, and you should stress to the employee that it is not a disciplinary sanction.
It is vital to undertake a thorough and proper investigation. The nature and extent of the investigation will depend on the seriousness of the matter.
The more serious the matter, the more thorough the investigation should be.
Although Employment Tribunal case law has confirmed that you are not obliged to undertake a “police level” investigation, you should undertake a “reasonable” investigation.
What is a “reasonable” disciplinary investigation?
What is reasonable depends on the circumstances and the size of your business, but as a minimum, you should be expected to speak to those involved to get their account of the matter and to collect any documents that may be relevant.
In some cases, an investigatory meeting with the employee may need to be held to establish the facts, before the disciplinary hearing.
This is often appropriate if you are unsure whether they have actually done anything wrong – for example, two security guards may have been on duty when a building site was set on fire, you cannot determine whether either of them have neglected their duties without actually speaking to them first and listening to what they have to so.
In other cases, it may just be necessary to collate all the evidence that will be used at the disciplinary hearing.
The Disciplinary Procedure
Provided you are satisfied that there is a case of misconduct to answer, you should make sure you have all the relevant evidence, including witness statements before inviting the employee to a disciplinary hearing.
Ideally, the investigation and disciplinary phase should be dealt with by different people to minimise the risk of bias.
You should ensure that the employee in question has had enough time to prepare their case, and all the evidence has been given to them well in advance of the meeting. If dismissal is a possibility, you should include this in the invitation letter.
Employees also need to be told that they have the statutory right to be accompanied to a disciplinary meeting, where the meeting could result in:
- a formal written warning;
- another form of disciplinary;
- confirmation of a sanction.
The companion could be a trade-union representative, an official employed by a trade union, or a work colleague. If an employee does wish to be accompanied, they must make a reasonable request.
Whether the request is reasonable will depend upon the individual circumstances of the case. If two employees are accused of the same misconduct, it would not be appropriate to allow them to act as companions to one another as there would clearly be a risk of prejudicing the process.
The companion can address the hearing and put forward and summarise the employee’s case, and they can also confer with the employee throughout the meeting. They cannot, however, answer questions for the employee.
An impartial colleague should be present to take the disciplinary hearing minutes and witness what has been said. It is vital that clear, good quality notes are taken. These will be vital if the matter ends up in an Employment Tribunal claim.
Throughout the meeting, the employee should be allowed to speak freely in order to establish the facts. You should not get involved in any arguments or make any personal remarks and should ensure that they have the chance to say everything that they want to say in response to the allegations.
If any new facts or lines of enquiry arise during the course of the meeting, it may be best to adjourn to investigate further and reconvening at a later date. For example, an employee may claim that a key witness has a grudge against them. You may want to adjourn the meeting to arrange to speak to the witness and see whether this is true.
At the end of the hearing, it is essential that you refrain from giving a decision without first allowing for an adjournment to enable you to consider the evidence. In most cases, it would be appropriate to delay the decision to the following day so that you can properly consider the evidence.
Deciding On A Sanction: Which One Is Best?
After the hearing, you need to consider all of the evidence available and weigh up what the employee has said. You should consider not only the evidence against the employee but also any evidence that helps them. Try to remain as impartial and even-handed as possible.
If you decide that misconduct is proven, the outcome will depend on the seriousness of the offence. Where minor misconduct is confirmed (such as minor breaches of your internet use policy), a written warning will typically be appropriate.
If the conduct is more seriousness, such as failure to follow a policy that could have resulted in a financial loss to the company, you may be able to justify a final written warning. It is important to remember that you do not have to issue a first, second and final warning in order – you can go straight to a final written warning if it is appropriate.
The warning, whether a first or final, must be put in writing in the form of a disciplinary outcome letter, and must detail the nature of the misconduct and how the employee’s behaviour should improve over a specified period.
It should also tell the employee how long the warning will remain on their personnel file for, and any consequences of any further misconduct.
If the act is considered gross misconduct and is so serious within itself, it could be that the employee may be dismissed without notice, even if it is their first offence.
Gross misconduct can include, but is not limited to:
Disciplinary Appeals
If an employee feels that disciplinary action has been taken against them is wrong, or the sanction imposed is too severe, they can appeal the decision.
Employees should let you know in writing the grounds for their appeal.
Appeal hearings should be held as soon as practicably possible.
Ideally, the appeal should be heard by an impartial manager and not one who has been a part of the disciplinary process. Like a disciplinary hearing, workers have the right to be accompanied.
Once the meeting has concluded, and a decision has been reached, either to uphold the original sanction or changing it, it should be put in writing to the employee in question, also confirming if the decision is final.
Handling disciplinaries is a vital part of running a business. If disciplinary issues are handled fairly and promptly, it can avoid problems stagnating and can help to ensure that the employee’s behaviour is corrected.
If the disciplinary process is poorly handled, then not only can this undermine employees’ trust in the company but can also give rise to expensive and complicated claims for unfair dismissal where substantial amounts of compensation can ultimately be payable.
The Employment Law and HR services we provide will help guide you through any disciplinary situation, providing you with all the paperwork you will need.
We can even write you a disciplinary hearing script if you’re not sure what you should be saying. Take a look at our packages or give us a call on 0333 041 1094 for more information.
