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.
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.
Can an employee insist on electronic recordings of disciplinary hearings? Once the disciplinary hearing has taken place, there is still some important steps to take to ensure the correct procedure has been followed all the way through the process. 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 your company has an internal disciplinary policy then you should make sure you follow this when holding a disciplinary hearing as well. All employers are required by law, as a minimum, to have a disciplinary procedure.
Read Employment law expert Natalie Ruane's guide to disciplinary procedures here. You should then query these with the employee and ask for an explanation.
The employee has a right have a colleague or a trade union representative accompany them to the disciplinary hearing. A trade union official can also be a co-worker, but this will rarely be the case for SMEs. They employee can seek outside representation from a trade union, but the official must be an officer or an elected representative. An employee can request that a family member be present; you can choose whether or not to allow this, unless explicitly stated in their employment contract.
A union representative can present your employees case and may confer with them. If it looks like your employee is considering handing in their notice before the disciplinary hearing, how you respond depends on whether the employee has to work a notice period.
If a conclusion finds the employee committed gross misconduct after holding the disciplinary hearing, notice periods and resignation become irrelevant. You have to give a reasonable amount of time for them to prepare this but this will differ depending on the allegations. However, if the issue is complex, involving multiple people and a series of evidence, it is worth giving the employee a week or so to adequately prepare.
We can help. Speak to a Croner expert for personalised advice: Call us today on or fill in your details below to speak to an expert. The meeting must be managed correctly to avoid allegations that the employer failed to handle the disciplinary process fairly or lawfully.
We look at how employers should prepare for a disciplinary meeting. Should an employee bring a claim against their employer, the tribunal will examine whether the employee followed a fair disciplinary procedure and the ACAS code. The Code applies to incidents of misconduct and poor performance, but not redundancy, dismissals or the non-renewal of fixed-term contracts on their expiry.
If following a fair and thorough investigation, where you can show you have taken reasonable efforts to gather evidence and ascertain the facts, you consider there is a disciplinary case against an employee, a disciplinary meeting should be arranged.
The first step is to set a date and time to hold the meeting in an appropriate location that allows for privacy and confidential discussion. If the employee is disabled, you should ask if any reasonable adjustments need to be made to the arrangements.
You should then provide the employee with formal, written notification of the disciplinary meeting. In the letter, you should include the details of the hearing time, date and location. In many disciplinary cases, particularly in relation to alleged acts of gross misconduct , employers may consider whether suspension of the employee would be appropriate. Suspension — even where on full pay — can give cause to unfair dismissal claims or if an employee resigns as a result of the suspension they may be able to claim constructive dismissal.
As such, suspension should not be used as an immediate response and any decision to suspend an employee must be taken carefully. If suspending an employee, you will need to be able to show you acted reasonably in the circumstances and that the suspension did not breach the implied terms of trust and confidence under the employment contract.
Where you do take the decision to suspend, it should be made clear to the employee that this is not a punitive measure and that the investigation process remains fair and open for an informed decision.
You should maintain contact with the employee, reviewing the suspension and to arrange the return to work when appropriate. Precisely who should attend the disciplinary meeting will in large part depend on the individual disciplinary case and the business itself but could include:.
Employees have the right to be accompanied by a work colleague, trade union representative or official employed by the trade union where they are facing disciplinary action as a potential outcome of the hearing.
You should make them aware of this right when notifying of the date of the hearing. It is at your discretion whether to allow the employee to be accompanied by a family member or friend. They cannot however answer questions for the employee. The disciplinary meeting should be used to discuss the allegations with the employee and to allow the employee the opportunity to respond to the allegations, put forward their case and ask any questions they may have. The questions you ask will determine in large part the impact of the disciplinary meeting and your ability to make a fair and informed decision on the matter.
The specific questions to ask will depend on the individual circumstances of the issue but could cover the following:. Confirmation from the employee regarding the disciplinary procedure and their rights. The employer should clarify that they have done everything possible to make the employer aware of the disciplinary procedure, what is deemed unacceptable behaviour, and what their rights are as an employee.
The employee should be asked whether they feel the accusation is valid. Was their conduct unacceptable? Do they feel they are underperforming? Are there mitigating circumstances as to why the situation occurred, for instance, tiredness or ill health leading to making a mistake. Alternatively, do they disagree with the accusation? Ask the employee to explain the events that have led to the accusation.
What happened? Who was present? What were the repercussions? Ask the employee to present any evidence they have gathered or call witnesses to support their case. The employee must be given the opportunity to give their side of the story, whether that is to deny the accusation or explain why they behaved in an unacceptable way. In answer to evidence. During the meeting, it will be important to examine any witness statements and all other relevant evidence.
As you work through the evidence, it may become necessary to ask corresponding questions. Witnesses can also be called to the meeting, and be questions on their recollection of events to help provide further clarity and perspective on the allegations. At the end of the meeting, once all the evidence has been examined and all questions asked and answered, the employee should be asked if there is anything more they would like to add or ask.
This gives the employee the opportunity to react to any evidence or questions that came up during the meeting. Do not underestimate the importance of taking contemporaneous notes during the meeting. Record the questions that were asked, who asked them and what the response was. Where possible, this responsibility should be assigned to someone who will not be involved in the meeting to ensure focus on the requirement.
Should the matter escalate to a tribunal, the notes may be relied on as a record of the discussion. At the end of the meeting, give the employee the opportunity to check the minutes and sign and date to confirm their agreement. You want to be satisfied you have a full response before moving on to the next question.
Try to keep the atmosphere professional and curteous, avoiding hostility, aggression and putting pressure on the employee. Disciplinary meetings can become stressful for the employee and if necessary, you can pause the session to allow for a short break to recompose and refocus to the matter at hand.
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