Disciplinary Proceedings Questions and Answers
Avensure’s recent Ultimate Guide to Disciplinary Proceedings client webinar raised some interesting questions from those who attended.
Below are the top 15 questions from the webinar, and as promised, we have answered them for you.
1. Is there a different process to manage conduct if an employee is in their probation period?
An employee’s overall suitability is being assessed in their probation period. This means that if issues or concerns arise, whether those concerns relate to conduct or their job performance and capability, this can be dealt with by calling the employee to a probation review as opposed to proceeding via the disciplinary or capability procedure.
The outcome of a probation review would be further time to improve, usually with an extension applied to the probation period, or the employment is terminated.
2. Can witness statements be anonymous for fear of reprisal from the person being investigated?
Witness testimony is very important when investigating allegations of misconduct.
Where they form part of the evidence that will be used in formal disciplinary proceedings, it is vital that the employee facing those disciplinary allegations is given sight of all documentation the company intends to rely upon. This is integral to the employee having a full opportunity to defend the allegations.
The employer also has a duty of care to safeguard and protect employees from harassment and intimidation. There may be instances where the employer can provide the witness testimony to the employee but conceal the names of the witness/witnesses.
However, they should be informed of the names of the person/s who have provided witness evidence against them before their disciplinary hearing.
3. What if there is an accusation where one employee is accused of being verbally abusive, and using threatening language, but there are no witnesses?
Where it is one person’s word against another and there are no independent witnesses to verify or disprove the allegations, the employer should bear in mind there are in effect two witnesses: namely the employee who has made the allegation and the employee who has denied the allegation.
The employer needs to demonstrate a reasonable belief that the incident took place or that it did not.
Perhaps the employee accused has a history of angry outbursts or has live disciplinary warnings for similar incidents—this could give rise to a reasonable belief that the allegations are true.
Likewise, the allegations may be completely out of character, so in the absence of other forms of evidence, it would not be reasonable to support the allegations.
In either case, the employer must weigh up the evidence available and decide whether there is a case to answer at a formal disciplinary.
4. Who is required to sign meeting/hearing minutes, the employee, note taker, or both?
Minutes should be signed by everyone present, including the employee, their representative (if they have one), the chair of the hearing, and the note taker. E-signatures will suffice.
5. What if the employee refuses to sign the minutes?
If they refuse to sign because they dispute the content of the minutes, ask them to set out what they dispute. If the chair and note taker agree to make the changes to the minutes, they can be reissued, and hopefully, the employee will sign them.
But if the employee refuses to sign them and does not provide a good reason, then a note can be added to state that the employee has refused to sign but has not provided a reason for their refusal. Their refusal to sign will not invalidate the minutes.
6. Can we record hearings for the purposes of accurate minutes? If so, can we delete the recording after the minutes have been signed?
Recordings can be made, but everyone present must consent to them. Even if the recording is only intended to allow for accurate minutes to be produced, the employee can still request a copy of the recording.
7. Practically, how do we get a signature on the minutes before they’ve been typed up?
It is advisable to type up handwritten notes unless they are very clear and legible. It is fine to produce the minutes for signing after they have been typed.
8. Can you demote someone following a serious misconduct disciplinary?
Demotion can be used as an alternative to dismissal, excluding cases of gross misconduct. It must follow a fair disciplinary procedure, and where the employee has over two years of service, it should only be used where there has been a succession of live warnings.
9. What if the disciplinary chair disagrees if their decision gets overturned at appeal?
It’s understandable for the chair of the disciplinary to be unhappy if their original decision has been overturned; however, they must allow due process to take its course.
The person chairing the original disciplinary should have no input or influence on the person chairing the appeal. This is why it is advisable to leave the most senior person in the company free to chair the appeal.
If the person strongly disagrees with the appeal decision, they are free to raise their own concerns, perhaps by way of a formal grievance.
10. What would happen if an employee is called to a disciplinary hearing and fails to attend their hearing without notice?
The letter inviting an employee to a formal disciplinary hearing will forewarn them that if they fail to attend without good reason, their non-attendance will be classed as an additional allegation of misconduct, which will be considered at a reconvened hearing.
If the employee has fewer than 2 years of service, then a decision could be taken in their absence, which could lead to dismissal.
11. If someone has said they will withdraw their allegation if their name is revealed at the hearing, how do we proceed?
If a witness does not want to come forward, they do not have to, and if they change their mind and wish for their testimony to be withdrawn, that is up to them.
Witnesses must be informed that their testimony may be used and presented in evidence if there is a formal procedure.
In exceptional circumstances, it may be appropriate to maintain anonymity for a witness, but this is rare.
12. How do you deal with misconduct if a person has a disability, and this may be mitigation for their conduct?
If someone’s disability is presented as mitigation when investigating allegations of misconduct, the employer may need to investigate further by making a referral to occupational health or seeking consent for a medical report.
To disregard the mitigation without further investigation could leave the employer exposed to allegations of discrimination.
13. Are there instances where an employee can file for disciplinary proceedings due to the misconduct of an employer?
Where an employee has a dispute at work, whether that is due to the alleged action of their employer or a colleague, they can raise their concerns via the grievance procedure, which will be set out in your employee handbook.
Depending on the outcome of the grievance investigation, for example, if the grievance substantiates allegations of harassment, then disciplinary action may follow against the perpetrator/s.
14. Can anyone instruct or ‘force’ an investigator to make a case go to disciplinary, for instance, a manager in a higher role?
The investigating officer will make recommendations as to the next steps only. The person who would be responsible for taking the matter further may feel that it warrants further investigation; for example, they may be concerned the investigation was not thorough enough.
Likewise, they may choose to go against the recommendations of the investigating officer and decide not to proceed formally or visa-versa.
15. Where would our disciplinary procedure be located? Is it the employee handbook, or is there an employer one?
The employee handbook contains all your rules and procedures, including your disciplinary procedure.
And finally…
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