Conducting disciplinary hearings

It is a fact of life that difficulties can arise at any time on both sides of the employer and employee relationship, but initiating and conducting disciplinary procedures and hearings is still seen as a reluctant last result for many businesses. For those businesses that do utilise this practice, it is often as a last-ditch attempt to deal with serious issues such as harassment, bullying or persistent unauthorised absence.

Whilst many equate spiralling levels of depression, anxiety and stress to something of a workplace timebomb, statistics actually show that the number of working days lost to absence have fallen to their lowest levels on record. The Office for National Statistics (ONS) reported that employees took an average of 4.1 sickness absence days in 2017, compared with 7.2 days in 1993, when records first began.

Despite this, many businesses still use formal disciplinary hearings as way to attempt to combat absence rates. A study conducted by the company Group Risk Development (GRID) showed that they are most popular amongst larger businesses, perhaps as they are more likely to have set policies and procedures in place. The survey of 500 HR professionals showed that of those surveyed, disciplinaries for unauthorised absences were used by 15 percent of larger businesses, and 14% of medium sized businesses. Only 6 percent of micro businesses reported that they instigated disciplinary procedures.

Ultimately, managing conflict effectively is the key to maintaining a healthy and productive working environment for all employees.

What is a disciplinary hearing?

A disciplinary hearing or meeting usually occurs at the primary stages of a disciplinary investigation. Usually, a hearing is arranged once an employer has investigated the reported situation and reviewed all evidence that is available. A hearing will then be conducted, at a time that is deemed suitable for both the employer and the employee in question.

During the hearing, the employer should explain the allegations, and discuss in detail all the evidence collated during the previous investigation. The employee should then be allowed to set out their case, and answer the allegations in full – they should also be provided with a reasonable opportunity to ask questions, present evidence, call relevant witnesses, and raise any issues regarding the information provided by witnesses (if applicable).

Why are they conducted?

Disciplinary procedures, such as hearings, provide clear structures for dealing with any difficulties that may arise within a working relationship, which should allow for them to be resolved fairly and reasonably. Disciplinary hearings are primarily conducted when all other avenues, both informal and formal, have been exhausted by an employer. You could use a disciplinary for a number of other reasons, including:

• Making employees aware of what is expected of them in terms of performance or conduct standards
• Identifying obstacles that may stop individuals from achieving the working levels that are expected of them, or a lack of clarity around job requirements
• Enabling employers and employees to agree suitable goals and timescales for improvement in an individual’s performance or conduct
• Attempting to resolve matters before they reach an employment tribunal stage
• Demonstrating to any resulting tribunal that due procedures have been followed up to and including that point

What are the most common issues raised at disciplinary hearings?

The need for a disciplinary hearing could arise from any number of issues, but there are a number of common workplace scenarios that appear to crop up again and again. These include general misconduct, poor performance, poor timekeeping, unauthorised absence, misuse of email, social media and the internet, bullying and harassment, theft, health and safety, substance misuse, violence and discrimination.

A survey conducted by Personnel Today showed that, of over 500 employers questioned, 93 percent rated general misconduct as the most common issue discussed within a disciplinary hearing. Poor performance or capability was rated the second most common issue, at 87 percent, and poor timekeeping came in third at 59 percent.

How should a company instigate a hearing?

This stage normally occurs after the facts of the complaint or general disciplinary have been established. If you have decided that there is an official disciplinary case to answer, you must ensure that your employee is notified of this in writing.

This written statement should include information about the misconduct or other issue, and its possible consequences – this will then allow them to prepare sufficiently for the case to be discussed at a disciplinary hearing. It would also be good practice to provide copies of any written evidence. Included in the written statement or letter should be details of the time and venue for the disciplinary hearing.

Does the employee have the right to be accompanied?

It is a statutory requirement for an employee to be accompanied to a disciplinary hearing, and it is also considered good practice to allow a person of their choice to attend alongside them. Some employers include such provisions contractually as part of their wider disciplinary and grievance policies, as they recognise the value that companions can add to the process.

Workers are entitled to be accompanied to a disciplinary meeting that is likely to result in:

• The issue of a formal warning
• The taking of other disciplinary action
• The confirmation of a warning, or of further disciplinary action

The statutory right entitles your employee to be accompanied by a fellow worker, a trade union representative, or an official employed by a trade union. You must agree to your employee’s request to be accompanied by a person from any one of these categories. You can however, ask that they try to pick a companion that is suitable, willing and available to attend the meeting, rather than sourcing someone from far away or who has difficulty in travelling etc.

Can it be rescheduled at employee request?

It is normally in the best interests of everyone involved to conduct a disciplinary hearing as soon as possible within the wider disciplinary process, but your employee does have the right to ask for the hearing to be rescheduled from its original time. This particularly applies to a situation where your employee’s companion may be unavailable for the agreed meeting date.

If you do need to reschedule, your employee should offer an alternative date in writing. This date must be within five working days of the date of the original meeting. You should also ensure that your policy around disciplinary hearing dates is reasonably flexible, as this will also allow for those needing a translator or sign language interpreter.

What should happen during the hearing?

If you are looking for an in-depth, comprehensive guide to the content of disciplinary hearings, you can view the ACAS complete code of practice for disciplinary and grievance procedures. Most organisations design their wider disciplinary and grievance policies around the main guidelines detailed here, as it is recognised as a definitive guide to best-practice on such matters.

However, a brief overview of the key points that should be touched upon in the meeting could include:

• Trying to keep a calm and measured atmosphere within the room
• Starting on time, and allowing breaks to be taken at any time
• Inviting another manager of a similar level to sit in upon the meeting with you
• Introducing everyone within the room, and ensuring that individual positions are clear
• Keeping meticulous notes of the interview
• Reviewing the nature of the complaint against the employee, and discussing any evidence in full
• Formally providing the employee with the precise details of the complaint against them, and note anything that they say in return
• When you have finished stating your case, checking that the employee has anything to say in response to everything that has been discussed
• Answering any further points raised systematically and calmly
• Deciding on your final decision regarding the hearing, and informing the employee of the action that will be taken
• Informing the employee that they have the right to appeal against the decision, how they can instigate an appeal and any time limit that may be imposed
• Confirming everything that has been discussed in writing, including an interview summary, the outcome, and the right to appeal

What if the employee fails to attend the hearing?

As previously discussed, an employee retains the right to ask you to reschedule the meeting, and this should be upheld if they fail to arrive at a planned hearing.

However, if non-attendance persists in this manner, and you feel that you have provided them with enough time and information in order to sufficiently prepare for the hearing, then should begin investigations as to why they are unable to attend. In extreme circumstances, it could be helpful to inform them that it is possible to make a decision on the disciplinary in their absence.

Can a hearing be conducted whilst an employee is on sick leave?

If the sickness is likely to be short-term, it would be best practice to postpone the hearing until your employee returns to the workplace.

In the case of a long-term absence, you should instead try to make a decision to involve the employee in the process. This could mean allowing them to outline and state their case in writing, or via a third-party representative.

You could also employ the use of occupational health if you feel that a long-term sickness absence may not be entirely genuine. They can act as semi-impartial third-party to liaise with your employee to try and establish if there are any barriers that can be removed in order for them to attend the hearing.

What are the possible outcomes of the hearing?

There a number of potential outcomes that the hearing could result in. If you feel the disciplinary was instigated for a minor matter, for a complaint that has been proven to be false, or else for a situation that is now resolved, you can decide that no further action is necessary.

Alternatively, you may decide that the situation warrants a formal warning. Your policy should outline what type of warnings are appropriate, but they will likely include verbal/oral, first written, and final written warnings. A first written warning is normally kept in place for six months, whilst a final warning is held on file for up to one year.

In extreme cases, or those where the disciplinary has been ongoing and previous meetings have failed at resolving the issue or complaint, you could also consider dismissal as a last result.

What happens if the employee appeals the outcome?

Your employee retains the right to appeal any disciplinary decision, if they feel that the action taken is wrong or unjust. Appeals can be made on various grounds, including those of producing new evidence, undue severity of the decision, or inconsistency of the penalty given.

At all stages of the disciplinary process, you must ensure that you make the employee’s right to appeal as clear as possible. You should include full details of how to appeal against a disciplinary decision within your company handbook or wider grievance policy. Normally, an employee is required to appeal a disciplinary decision in writing within five working days of their receipt of the initial hearing’s outcome decision.

Your employee can also request to instigate an appeal meeting, which you should endeavor to hold as close to the original meeting as possible. Your employee must detail their appeal case in writing, and they also retain the right to accompanied. Ideally, this meeting will be dealt with more impartially, and ideally you should try to include a manager who was not present at the original hearing.

Checklist: What should you consider when conducting a hearing?

Conducting a disciplinary hearing can be daunting, especially for those operating small businesses, but adhering to a checklist of key principles could be helpful in streamlining the process as a whole:

• Fairness principles – You must maintain the basic principles of fairness, and keep consideration of the minimum disciplinary procedure that you as an employer must follow
• ACAS code of conduct – Study the ACAS principles on disciplinary and grievance procedures, and educate yourself as to the consequences of failing to follow the established code of conduct
• Note taking – Ensure that you have impartial company representative available to take notes during any formal and informal meetings that may occur
• Decide on procedures – Outline the full procedure that will be followed during the hearing, and introduce all parties taking part
• Set out the case – Calmly and measuredly state the allegations and sum up all credible evidence against the employee in question. Give the employee adequate time to respond
• Weigh up the evidence – Filter through the arguments on both sides, and try to decide on the best course of action going forward
• Communicate the decision – Once you have arrived at your decision, you must quickly inform your employee in writing, detailing the reasons behind it, and the details of their right to appeal.