Guest Blog by Shakira Joyner HCHR
A disciplinary hearing can be a difficult area for employers.
Even though there can be a wealth of evidence against an employee, if a fair process is not followed, it leaves the employer open to the risk of a claim for unfair dismissal
If, following an investigation, an employer decides that there is a disciplinary case for an employee to answer, a disciplinary hearing should be arranged.
Preparing for a Disciplinary Hearing
The first part of preparation for the disciplinary hearing is to revisit your Disciplinary Policy and also ensure you have completed a thorough investigation into the problem or incident and collected any relevant evidence that can be used in the hearing.
Set a date and time to hold the disciplinary hearing and arrange a suitable, private venue. The date set for the disciplinary hearing should be in line with your disciplinary procedure, and give you and the employee sufficient time to prepare. If the disciplinary policy doesn’t state the number of day’s notice to be provided, make sure you allow reasonable time to prepare.
Depending on how complex the investigation was and how much information there is for you to consider, normally five working days’ notice for a disciplinary hearing is sufficient. You should also arrange for a note-taker to support you at the disciplinary hearing.
It is important that the employee is given the chance to put their case forward in response to the allegations, and that a fair process is followed when preparing for and conducting the disciplinary hearing.
At the start of the disciplinary hearing, the manager should introduce everyone present; explain the allegations against the employee and the purpose of the hearing. The employee should again be reminded of their right to be accompanied if they have attended unaccompanied.
The employee should then be given the opportunity to make any response to the allegations, ask questions and discuss any documentary evidence.
If the employee has a representative at the meeting, be aware that they can make statements and ask questions on the employee’s behalf but cannot answer questions that are put to the employee directly.
Disciplinary hearings can be stressful for employees and witnesses. The manager should be mindful of this and, if necessary, allow for short breaks.
At the end of the meeting, the manager should check if the employee wants to say anything further before the manager considers everything and makes their decision.
ACAS Code of Practice
The ACAS Code of Practice on Disciplinary and Grievance Procedures is an essential read for any business owner, manager or HR professional dealing with disciplinary hearings.
The Code gives crucial guidance on carrying out a fair procedure for misconduct and poor performance.
If an employer unreasonably fails to comply with the ACAS code, then this may result in the dismissal being unfair and an increase of up to 25% on any compensation awarded.
The purpose of a hearing is to establish the facts of the case, question and essentially get to the truth of the matter. A hearing should never be about trying to ‘catch someone out’ but should be a fair and ethical assessment of the situation at hand.
When seeking disciplinary at work advice, a lot of people want to know what disciplinary action should be taken, but this is entirely dependent on your own company policies, the severity of the indiscretion, and the outcomes of the disciplinary hearing.
However, a key point to hold on to and which can frequently be lost within adherence to the procedure, is that the disciplinary procedure is predominantly designed to improve performance and not to punish.
By their nature disciplinary hearings are stressful, not only for the employee but for the decision maker. DON’T FORGET the cost of getting it wrong can be costly Tribunal claims, compensation claims of up to a year’s salary (or uncapped if involving discrimination or Whistleblowing issues) and damage to reputation.
HCHR has many years of experience in handling disciplinary cases for a number of different organisations. Our specialist consultants can professionally conduct any formal disciplinary hearing with a view to ensuring fair and ethical proceedings on the part of each party involved.