Minimising Risk – Disciplinary Hearings

By November 7, 2018Case Review, Top Tip
Disciplinary Hearings | HR Solutions

HR Solutions recently presented a free webinar providing guidance on how to conduct the perfect disciplinary investigation. You can watch recordings of all of our minimising risk webinars, on demand, at our HR Webinars Archive.

If during a disciplinary investigation meeting, the employee was unable to provide a satisfactory explanation for their behaviour and there is a case to answer to, then a disciplinary hearing is probably on the horizon. Some common disciplinary concerns may cover matters such as conduct in the workplace, timekeeping, absence, health and safety, and use of telephones, email and social media. In this article, we provide some HR guidance in relation to disciplinary hearings.

When is a disciplinary hearing the right course of action?

Since a great deal of resource goes into conducting a disciplinary hearing, it is important to make sure that this is the appropriate route to follow by considering the following factors:

  • Whether an informal warning would be more appropriate
    Depending on the circumstances, it can be more appropriate to simply have a documented discussion or to issue a letter of concern, rather than progress to a formal disciplinary hearing.
  • Is the matter a conduct issue?
    ‘Conduct’ is when someone has essentially chosen not to do the right thing. This is opposed to a ‘capability’ issue, where someone can’t do the right thing but not for want of trying. This is usually due to limitations such as skills or health.
  • The employee ought to have known better
    There should be rules or instructions that have not been followed. Alternatively, it might simply be a common-sense issue. For example, even though there may not be a social media policy, it should be obvious that posting something which is explicit and offensive about your employer online, where other colleagues or even clients are likely to see it, is not acceptable! It is important to note that allegations would need to be carefully worded if there is not a written rule that has been broken.
  • Consistency
    It should be the case that the type of conduct in question would always lead to formal action. There should not be any examples of anyone having done something similar who did not face disciplinary action as a consequence, (unless there is a good reason for treating the two situations differently). Any disciplinary policy should be adhered to (particularly if it is a contractual policy); if in doubt the Acas Code should guide employers without a policy.

How do you address the allegations to the employee?

  • On a disciplinary invite letter, the allegations should be clearly set out. They should state what the employee has potentially done wrong, when this is thought to have happened and include brief details of the circumstances and enclosed evidence.
  • The employee must be able to understand exactly what they are being accused of, so they may fully prepare for the meeting. For this reason, any evidence that will be attended to within the hearing must be enclosed.
  • The employee should be given reasonable time to prepare and make arrangements for their accompanying person, if they choose to have one. They should also be made aware of who will be chairing their hearing and if there is a possibility that the hearing may result in a warning or form of dismissal.
  • There must be no reason for the employee to doubt that the matters of concern are ‘alleged’, as any evidence that the outcome of the hearing is pre-determined may seriously undermine the meeting and may even result in the outcome being procedurally unfair.
  • Disciplinary action can only be taken in respect of allegations that were set out in the invite letter, and only in respect of those which are found to be true. For this reason, allegations must be carefully worded, and there should be an allegation for each matter of concern.
  • When there has been misconduct which is serious enough to warrant a disciplinary hearing, the circumstances may warrant more than one allegation. It is important to distinguish between these and to deal with each allegation in turn. By doing so, if one of the allegations fall down, you may still be able to take some form of action based on the other.

Further HR Guidance

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