The disciplinary meeting is a critical stage in an organisation’s disciplinary procedure, as stipulated by ACAS in its Code of Practice. Even in seemingly straightforward cases where there is perceivable compelling evidence against an employee, a fair process must be followed. Where an employer fails to meet the required standards, they risk allegations of unfair and unlawful process and potential tribunal claims.
Where a workplace investigation into misconduct has produced evidence for a disciplinary case against an employee, the employer is required under the ACAS guidance to arrange a disciplinary meeting as soon as possible. If employers fail to comply with the code, it may lead to any tribunal award in favour of the employee being uplifted by up to 25%.
The employer should set a date and time and arrange a suitable venue. When setting a date for the meeting, consideration should be given to any stipulations in the company disciplinary policy, while also allowing the employee sufficient time to prepare. As a guide, around five working days should be considered reasonable notice although it is not uncommon to make use of a longer period in more complex investigations where there is substantial evidence to be gathered.
Preparing for the hearing
Before the meeting, you should formally write to the employee inviting them to attend. The letter should:
- Outline the alleged misconduct or issue
- Include evidence from the investigation that will be referred to or relied on
- Clearly state the date, time and location for the disciplinary meeting
- Notify the employee of their right to be accompanied
- Advise the employee of the possible outcomes following the hearing such as dismissal
The right to be accompanied
The employee has a right to bring someone with them to a disciplinary hearing. They should inform their employer as soon as possible as to who the person is.
The employee can be accompanied by a work colleague, a workplace trade union representative, or a trade union official to the hearing. It is at the employer’s discretion whether to allow companions outside of these classes of individual, such as a friend, partner, spouse, legal representative or member of a professional support body to attend.
Discrimination law states that employers must make reasonable adjustments for disabled employees, so in some circumstances, a support worker or someone with knowledge of the employee’s disability may be permitted to attend.
Who should lead the meeting?
When selecting a person or persons to conduct the meeting, the employer should ensure the decision is in line with the company disciplinary policy. Ordinarily, the disciplinary meeting should be led by a senior manager with the authority to make a disciplinary decision and who has had no involvement in the disciplinary issue itself.
This may be difficult for smaller organisations, who may instead consider using an independent consultant to chair the meeting to ensure its impartiality and fairness.
There should also be someone at the meeting responsible for making comprehensive contemporaneous notes of the discussion as these may need to be relied on should the matter escalate.
The disciplinary meeting
The hearing will be the forum in which to discuss the disciplinary issues and allegations facing the employee.
The individual leading the hearing should start by asking the employee to confirm that they understand what the hearing is about, what the allegations are and what disciplinary action they could face if the decision is made against them.
The meeting should then move onto discussing in detail all of the evidence being relied on following the investigation.
The employee should then be given the opportunity to respond to the allegations, to ask questions and to present any supplementary information such as new evidence, mitigating circumstances and explanations of the behaviour.
Both employers and employees can call on relevant witnesses to attend the disciplinary hearing as long as their attendance is known in good time.
At the end of the meeting, the chair should offer the employee the opportunity to ask any further questions. They should be shown the minutes of the meeting and asked to sign and date as confirmation of their agreement with the notes, and be provided with a copy being for their own records.
The hearing should be adjourned in order for the employer to consider the hearing discussion, evidence and to arrive at an informed decision.
After the hearing
The employer remains subject to procedural standards after the hearing.
If new evidence or issues are raised following the hearing they must be considered, and additional investigations carried out if necessary. There may need to be a further disciplinary meeting where the employee is given an opportunity to respond to this new information.
The employer should come to a decision based on the evidence gathered from investigations and meetings, what is fair and reasonable and the action that has been taken in similar cases in their workplace. Different workplaces have different suggested disciplinary outcomes, they should be outlined in the company disciplinary policy and may include an informal warning, written warning, demotion, suspension without pay or dismissal.
Depending on the circumstances the hearing may reconvene to tell the employee the decision when it has been reached. It may not always be appropriate or practical to give the decision in person and the decision must always be given in writing, even if told in person first. The letter must contain instructions on how the employee can appeal the decision.
The employee can appeal against the outcome on grounds of it being unjust or if they feel the disciplinary procedure was unlawful or unfair. If the employee submits an appeal it must be overseen by someone not previously involved in the disciplinary hearing or investigation.
How legal advice can help
A robust and fair internal disciplinary and grievance policy is vital for all employers and the first step to holding successful disciplinary hearings.
A solicitor specialising in employment can help if you have queries about drafting and maintaining your disciplinary policy in support of a positive working environment. They can also help with specific workplace issues, such as disciplinary proceedings and where appropriate, use of settlement agreements to achieve an expedited exit on terms mutually agreeable to both you and the employee.
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.