Ben Doherty, Partner and Head of Lindsays’ Employment team, offers guidance to employers on how to handle disciplinary hearings when employees have, or are suspected of, committing acts of misconduct.

One of the most common (and often the most difficult) issues that employers are faced with is managing disciplinary procedures. Employees with over two years’ service have the right not to be unfairly dismissed, and correctly handling the disciplinary procedure can mean the difference between a fair and an unfair dismissal.

Having a well-drafted disciplinary policy in place and applying it consistently helps ensure that the correct procedures are followed. Policies should set out the standards which are required of staff, meaning that employers can identify when employees have fallen below what is expected of them and act accordingly.

When dealing with disciplinary issues, employers can easily avoid common pitfalls by having robust policies and procedures in place.

A fair disciplinary procedure should involve three stages:

1. an appropriate investigation into the allegation

2. a disciplinary hearing at which the employee has the right to be accompanied

3. a right of appeal being given to the employee.

The investigation

A disciplinary process ought to start with gathering evidence into the alleged act of misconduct.  The employer should appoint a manager who has not previously been involved in the matter to investigate (the Disciplinary Officer).  This should involve collating documentary evidence and speaking to relevant witnesses, including the employee who is suspected of wrongdoing.  It’s important to undertake this with an open mind.

 The invitation letter

An employer should hold a disciplinary meeting quickly whilst allowing the employee reasonable time to prepare their case.  The invitation to the disciplinary meeting should give sufficient notice (usually 3 – 5 days) to allow the employee time to consider the allegations against them, prepare their response and arrange for a companion to accompany them at the meeting.

The disciplinary invitation must also warn the employee of the potential outcome of the hearing, whether this be a warning or dismissal.

Workers have the right to be accompanied at meetings by a trade union official or a colleague where the meeting might result in a formal warning, some other disciplinary action or at an appeal hearing.

The companion should be allowed to address the hearing but does not have the right to answer questions on the worker’s behalf, address the hearing if the worker does not wish it or prevent the employer from explaining their case.

The disciplinary hearing

At the hearing, a note-taker should be present to take accurate minutes and although they don’t need to be verbatim, the note-taker should not be overly selective in what they write down either.

If parties agree, the meeting can be recorded (most mobile phones can make voice recordings) and a transcript prepared afterwards.  Employers should also proceed on the basis that the employee may be covertly recording the meeting and not say anything that they would not want to hear repeated in front of a Tribunal judge.

Whilst many employers like to prepare key questions they want to ask, these should serve only as a guide and should not exclude the exploration of further issues which may be relevant or distract the Disciplinary Officer from actively listening to responses. Any evidence should be referred to when relevant and the employee should have a chance to respond.

Communicating the decision

After the hearing, the Disciplinary Officer should take time to consider all of the evidence and any representations made by the employee. In some cases a few hours consideration will be adequate, but employers should allow more time for more complex cases.

It is good practice to detail in the outcome letter any mitigation that was considered when deciding on the appropriate sanction as this will demonstrate that all of the relevant information was taken into account.

Handling each stage of the disciplinary procedure with care and attention will minimise the risk of a successful unfair dismissal claim against the employer. If any defects in the procedure are identified, it might be possible to rectify these at the appeal stage.

Ben Doherty
Partner and Head of Employment
Lindsays
bendoherty@lindsays.co.uk