Disciplinary issues are a thorny area for employers. Regardless of the situation and the strength of your position, failing to follow a fair and lawful process can result in you facing an unfair dismissal claim. The disciplinary hearing is a key aspect of the disciplinary process. Before you can impose any sanctions on the employee in question, you must first conduct a disciplinary hearing. Knowing how to prepare for a disciplinary hearing as an employer is crucial to ensuring you handle the matter fairly and with transparency.
Here, we guide you through the steps involved in preparing for a disciplinary hearing as an employer. The exact steps required will depend on the nature of the disciplinary action and your business, so you should always seek support from HR specialists as soon as you become aware of a potential issue.
Call us now on 01491 598 600 or email us on cw@gaphr.co.uk and we will be delighted to help you.
What Are The Rules Governing How An Employer Should Prepare For A Disciplinary Hearing?
Many issues relating to an employee’s conduct can be effectively resolved informally by their line manager or team leader having a quiet word with them. However, where circumstances render this inappropriate, or if informal action has failed to yield results, you may need to take formal disciplinary action.
The ACAS statutory Code of Practice on discipline and grievance sets out guidelines for employers and employees on handling workplace disciplinary issues and grievances. Failing to follow the Code does not, in itself, expose you to a claim for unfair dismissal. However, if the employee does issue Tribunal proceedings, the Tribunal will take the parties’ compliance with the Code into account when deciding on the level of damages. If you do not follow the Code, the Tribunal may increase any damages awarded to the employee by 25%. The Code does not apply to redundancy cases or the non-renewal of fixed-term contracts.
The Code recognises that the action required in a particular case depends on the circumstances, including your organisation’s size and resources. It notes that it may not be easy for employers to follow all of the steps set out in the Code but reiterates that any action taken must be fair. To ensure you do all that is expected of you in any given case, you should take expert HR advice on the action required to fully protect your position.
You should, of course, also ensure you follow any company internal rules and procedures relating to disciplinary situations.
What Steps Should An Employer Take To Prepare For A Disciplinary Hearing?
Under the Code, you should take the following steps when preparing for a disciplinary hearing:
1. Establish The Facts
You should investigate a potential disciplinary matter as soon as you become aware of it. This involves collating all relevant facts and documentation and, in all cases, holding an investigatory meeting with the employee. The investigatory meeting is not a disciplinary hearing, but merely a fact-finding exercise, and should not lead to any disciplinary action. The managers carrying out the investigation have to be different from those who conduct the disciplinary hearing.
2. Inform The Employee Of The Issue
If the results of your investigations confirm a disciplinary issue, you must notify the employee in writing. You should include all details of the alleged misconduct or poor performance and explain the potential consequences, such as a written warning or dismissal. If you have collected any written evidence in connection with the matter, such as witness statements or CCTV footage, these must be included with the notification.
The notification letter should inform the employee that you intend to hold a disciplinary hearing and state the time, date and location of the hearing. The hearing should be held no sooner than three working days after the invitation has been sent, which allows the employee a reasonable time to consider the case against them and prepare their defence.
3. Allow The Employee To Bring A Companion To The Disciplinary Hearing
Employees are legally entitled to be accompanied by a specified companion to a disciplinary hearing that could result in disciplinary action being taken against them. The companion can be a work colleague, trade union representative, or an official employed by a trade union.
Where this right applies, you must notify the employee in the invitation letter.
4. Decide Who Should Attend The Meeting
The appropriate individuals to attend the meeting on your behalf will depend on several factors, including the circumstances of the case and the size and structure of your business.
They may include a representative from your HR department or an external HR consultant, the employee’s immediate manager, and any witnesses you or the employee wish to call. No-one can attend on the company’s behalf if they have been involved in the issue that has prompted the disciplinary process.
5. Prepare For The Meeting
You must ensure you are fully prepared for the meeting beforehand. The role of a disciplinary meeting is to enable the employee to understand the case against them, put their position across, and ask any questions. You should think carefully about the questions you intend to ask, which should be fair, reasonable, and necessary to allow you to reach a balanced decision. It is best to ask open questions, not those which provoke yes or no answers. The employee must be given an opportunity to react to any evidence, raise any points, and put forward any mitigating factors.
You should consider how best to nurture a professional, courteous atmosphere during the meeting, rather than a combative, hostile one. Depending on the circumstances, it may be a good idea to factor in short breaks to allow the employee an opportunity to reflect on what has been said and compose themselves, promoting a more productive discussion.
Following the meeting, you must reach a decision as quickly as possible, certainly within five working days, and communicate that decision to the employee in writing. The letter should explain the outcome of the meeting and state whether you have decided to take any disciplinary action. You should also inform the employee of their right to appeal your decision and the relevant procedure.
Call us now on 01491 598 600 or email us on cw@gaphr.co.uk and we will be delighted to help you.
