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A Beginner’s Guide to Disciplinary Procedures- Part 4- Disciplinary Hearings

Last week in part 3 of our disciplinary guide, we focused on the evidential stage of the investigation stage, namely the gathering of evidence and witness testimony.

In this week’s article we focus on the disciplinary hearing, specifically how to carry out a disciplinary hearing alongside some top tips and dos and don’ts.

What is a disciplinary hearing?

Once the investigation process is complete, if there is a case to answer the employee is invited to a formal disciplinary hearing.

The purpose of the hearing is to allow the employee to formally respond to the allegations and any witness or material evidence. It is important that they have this opportunity to put forward a full explanation for the allegations together with any mitigation they wish to be considered.

Does a disciplinary hearing need to be arranged in writing with notice?

Yes. Unlike an investigation meeting, the disciplinary is a formal hearing. Therefore, written notice of a disciplinary hearing is required and should include the following:

  • The allegations
  • List any witness evidence which will be used in the hearing (all evidence must also be supplied with the invite letter)
  • Sufficient notice. Unless your procedures specify a minimum amount of notice, you should give reasonable notice. This will depend on the case but usually it should not be less than 24-48 hours.
  • The statutory right to be accompanied by a colleague or a trade union representative
  • The potential outcome of the proceedings

The do’s & don’ts of a disciplinary hearing:

  • DO ensure that the venue is suitable without distractions
  • DO ensure that the purpose of the meeting is fully explained
  • DO ensure that you stick to the allegations as set out in the disciplinary hearing invitation
  • DO ensure that you keep the employee on track
  • DO ensure that before moving on to the next allegation, or before concluding the hearing, that the employee has said all they wish to say
  • DO NOT ask leading questions or put words into the employee’s mouth
  • DO NOT automatically discount or ‘shut down’ any mitigation that is raised because you don’t think it is relevant– ask the employee to explain the relevance of any mitigation to the allegations
  • DO NOT give the decision in the hearing itself
  • DO NOT have the same person chair the disciplinary hearing and the investigation (there may be exceptions for very small businesses)
  • DO NOT badger or harangue the employee. If they don’t answer the question, by all means ask it again but don’t create an environment that is hostile by repeating yourself unnecessarily.

What happens when an employee goes off sick before the conclusion of a disciplinary process?

Absence due to stress at work is common particularly when someone is facing disciplinary allegations, particularly allegations of gross misconduct.

Depending on the circumstances, it may be appropriate to place the disciplinary on hold and where necessary obtain medical evidence or guidance to assess if it is appropriate to proceed.

What kind of mitigation could be raised by the employee?

Anything which is relevant.

Examples could include a recent diagnosis of a medical condition or personal matters which may have affected their conduct.

They may raise a formal grievance- see the below section.

What happens when an employee raises a grievance before the conclusion of a disciplinary process?

It is common for grievances to be raised by employees facing disciplinary allegations and it’s tempting to see this as a delay tactic.

However, depending on the nature of the grievance it may be appropriate to place the disciplinary on hold whilst the grievance is investigated.  For example, if a grievance is raised citing racial harassment or bullying.

However, if the grievance is directly linked to the disciplinary allegations, it may be appropriate to deal with the concerns as part of the disciplinary process. For example, a grievance which simply disputes the allegations- this can be addressed in the disciplinary hearing.

Its important to seek advice at every stage of a disciplinary process, especially where grievances have been raised.

Making the decision

Following the formal disciplinary hearing, the person conducting the disciplinary hearing must make their decision. There are several factors to weigh up to ensure that decision is fair and reasonable:

  • Are you able to make a decision? If not, you may need to carry out further investigations which will mean the hearing will need to be reconvened after any follow up investigations are completed.
  • If you are in doubt as to the employee’s explanations, then the hearing may not have been thorough enough and may need to be reconvened. This may simply be because the case is complex and requires more than one hearing.

What are the possible outcomes of a disciplinary hearing?

  • If the allegations constitute gross misconduct and they have been proven, the employee could be summarily dismissed i.e., without notice. Please see our previous article on gross misconduct.
  • A formal warning is issued. This could be anything from a verbal or written warning to a final warning (where the employee is already in respect of a written warning) or an extended final warning. A first and final warning may be issued for allegations of serious misconduct.
  • If there is no case to answer, no formal sanction is given, or an informal warning (letter of concern) may be issued.

Communicating the outcome

The decision must be issued in writing and that written decision must contain the following:

  • The reasons why the allegations have been upheld
  • How any mitigation has been considered
  • The effective date of termination if the outcome is dismissal or the date and duration of any formal warning
  • The right to appeal, the timescale for appeal and to whom the person should appeal

The right of appeal applies to all formal disciplinary sanctions against an employee, from a verbal warning up to dismissal and is applicable irrespective of the length of service. For more information on the appeal stage please see our previous article here.

Please quote your Client Account Number on all correspondence and telephone calls. 24-hour client advice line: 0800 151 2935.