Disciplinary hearings can be daunting and stressful for employees, with possible outcomes including demotion or even dismissal.
If you are facing a disciplinary hearing, it will be important to prepare well in advance, understanding the nature and detail of the allegations being made against you, compiling a defence and familiarising yourself with the disciplinary procedure you will be taken through.
All employees, regardless of length of service, have the right to not be unfairly dismissed on ‘automatically unfair grounds’. This means your employer must conduct any disciplinary proceedings in accordance with the law.
Disciplinary process: ACAS code of practice
If your employer is intending or considering taking any form of disciplinary action against you, they are required to follow the ACAS Code of Practice.
The ACAS Code of Practice provides a minimum standard of conduct and process requirements to be met such as:
- Ensuring that the person investigating the disciplinary issue is different from the person making the final decision at the disciplinary hearing.
- Providing the employee with written copies of evidence and witness statements before the hearing.
- Assessing the credibility of all evidence.
- Informing the employee of the potential consequences of the disciplinary action.
In addition, your contract of employment and/or company staff handbook may include specific disciplinary policies and procedures. If you believe your employer has not followed the ACAS Code, seek guidance from a legal professional.
Before the disciplinary hearing
Before the disciplinary hearing your employer must inform you in writing of the details of the complaint, the upcoming disciplinary procedure and declare their intention to hold a disciplinary hearing. They are obliged to inform you of the date and time of the meeting as soon as possible.
The letter should indicate that any special requirements (if English isn’t your first language or you need disability assistance for example) can be catered for.
In this letter you should also be informed of your statutory right to be accompanied at the hearing and your request must not be unreasonably refused.
All employees have the right to take a work colleague or trade union representative to a disciplinary hearing as stated in Section 10 of the Employment Relations Act 1999. However, your employment contract or disciplinary policy may offer you additional rights to be accompanied by someone else – a partner, spouse or friend.
If you wish to be accompanied by a legal representative, you will need to seek prior permission from your employer. While the decision to allow you legal representation at the hearing is at your employer’s discretion, the courts have signalled that if the nature of the hearing is so serious that your career is potentially at risk, legal representation should be permitted.
The person you choose to be your companion in a disciplinary hearing is permitted to do the following:
- Introduce your case and sum up your position
- Consult with you in the meeting (as long as this does not disrupt the meeting proceeding in line with your employers policy)
- Take notes for you
- They can answer questions for you – but the employer does have the right to insist the employee answers questions
Preparing for a disciplinary hearing
It’s important to thoroughly prepare for your disciplinary hearing in order to protect your best interests throughout the process. The key to this is knowledge and confidence.
You should consider the allegations made against you and prepare a written record containing your response to the allegation(s) and any relevant incidents that may have led to it.
Consider if you have any witnesses to the alleged events and if you do, is it possible to contact them to see if they are willing to provide a statement of support. If you are suspended and not permitted to contact them you should give your employer the witness details and ensure they are consulted as part of the investigation.
It’s important to collate any documents and evidence that support your arguments. Create a list of emails, letters, documents and any other information relevant to your case and make sure your employer provides you with copies. This is vital as your employer can only make a decision based on the information provided and if relevant information is not disclosed at this stage it’s difficult for it to be used at a later date – in a tribunal claim for example.
Many people choose to seek legal advice prior to their disciplinary hearing. A solicitor can help you draft your written representations, witness statements and compile your supporting documents. They can also ensure you understand the ACAS Code of Practice and your employer’s own disciplinary procedure.
What will happen at the hearing?
A disciplinary hearing should be a two-way process and your employer is bound by the ACAS Code of Practice to ensure this.
Importantly, the person leading the hearing should be independent from the incident in question e.g. if possible disciplinary action arises from an altercation between an employee and a manager, it would not be fair for that manager to make a decision regarding disciplinary action.
The hearing will start with your employer introducing the parties present, explaining the purpose of the hearing and how it will be conducted.
Your employer should briefly summarise the case against you and outline the evidence gathered. You should be given an opportunity then to answer the allegations and state your case to the hearing. As part of this you can present evidence, call on witnessed and ask questions.
The person accompanying you can also ask questions and you are permitted to confer privately with them.
You should request access to any notes or minutes taken during the disciplinary hearing as you should be given the opportunity to confirm their accuracy. If you believe there to be omissions or misrepresentations ensure you present them in writing to your employer before a disciplinary decision is made.
What happens after the disciplinary hearing?
After your hearing the employer will consider the allegations in light of the evidence. They may choose to take no further action or to impose a disciplinary penalty. The disciplinary options available to your employer may be stated in your disciplinary policy, common examples include:
- Verbal warning
- Written warning
- Final written warning
- Demotion
- Loss of seniority
- Disciplinary transfer
- Disciplinary suspension without pay
- Dismissal with notice
- Dismissal without notice
A decision will normally be made within a couple of days and your employer should inform you of this in writing as soon as possible.
Can I appeal a decision?
Your employer should notify you of the option to appeal the decision in line with the ACAS Code. A legal professional can help you draft an appeal letter that sets out the grounds for appeal. If possible the appeal should be dealt with by a manager who has not been previously involved in the case. As with the initial disciplinary hearing you are entitled to be accompanied at any appeal meeting by a colleague or trade union representative.
Your length of service will also have an impact on the possible outcomes of your hearing and the actions open to you. For example, in most cases you will need to have been in continuous employment for two years before you have the right to complain to an employment tribunal.
Advice and guidance on preparing for a disciplinary hearing
Given the significance of disciplinary proceedings to your job and reputation, taking legal advice in advance of the hearing can help ensure you are fully prepared. Specialist solicitors can help you understand the merits of the allegations made against you, draft statements and identify your best course of action. A legal adviser can also help ensure you are subject to a fair and open process.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
