How To Conduct a Disciplinary Hearing By Susan Mayall, Employment Law Solicitor, Pearson Hinchliffe Commercial Law, Manchester UK.

© Pearson Hinchliffe Commercial Law

Pearson Hinchliffe Commercial LawConducting disciplinary proceedings

• This seminar was delivered on Wednesday 7th July 2010 by Susan Mayall, employment solicitor at Pearson Hinchliffe Commercial Law, a commercial legal practice specialising in Employment Law, Corporate Commercial, Commercial Property and Commercial Litigation matters. We hope you find the information in this presentation useful and informative.

DISCLAIMER• Pearson Hinchliffe Commercial Law is Regulated by the Solicitors Regulation Authority and authorised and regulated by the Financial

Services Authority. The information contained in this presentation is for general guidance only. This presentation is intended to provide information only and reflects our understanding of legislation at the time of writing.We make no guarantee of its accuracy, nor do we accept any responsibility for any results obtained from the use of this information, expressed or implied. As such, it should not be used as a substitute for legal advice. Before making any decision or taking any action, you should consult a Pearson Hinchliffe Commercial Law solicitor.

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Pearson Hinchliffe Commercial LawConducting disciplinary proceedings

• Prior to the ACAS Code, were the Statutory Disciplinary & Dismissal Procedures which were in force from October 2004 until April 2009. These laid down that if an employer had failed to follow the correct procedural route, notwithstanding the fact that there may have been a perfectly fair reason for disciplining or dismissing, a disgruntled employee would have been able to issue a claim for automatic unfair dismissal, meaning that if the Claimant went to the Tribunal and was successful, the Tribunal had to increase any award by 10% and could have increased it by up to 50%.

• Thankfully, the ACAS Code removed automatic unfair dismissal. However, Tribunals will take the Code into account when considering relevant cases. Tribunals will also be able to adjust any awards made in relevant cases by up to 25% for unreasonable failure to comply with any provision of the Code. [This means that if the Tribunal feels that an employer has unreasonably failed to follow the guidance set out in the Code, they can increase any award they have made by up to 25%. Conversely, if they feel an employee has unreasonably failed to follow the guidance set out in the Code, they can reduce any award they have made by up to 25%.]

• So, it is still of utmost importance that a full and fair procedure is followed, so let’s have a look at a couple of different scenarios.

Pearson Hinchliffe Commercial LawConducting disciplinary proceedings

• Problem arises

• So, a problem arises, for example, various absences, say Mondays and Friday afternoons, different excuses, and various minor ailments. Another one, you could have had two employees either having an argument or fighting in the work place or another example of misconduct would be money going missing from a particular shift.

• When a problem arises and the information comes to your attention, you need to consider

what to do.

Pearson Hinchliffe Commercial LawConducting disciplinary proceedings

• Length of service?

• One issue you need to consider is the length of service of the employee. For employees with over 51 weeks length of service or for employees with less than 51 weeks but who may be covered by discrimination legislation, i.e. pregnant woman or employees who may be classed as disabled it is essential that a full and fair procedure be carried out.

• It is good practice to follow a full disciplinary procedure for all employees as this gets you into the habit of doing so.

Pearson Hinchliffe Commercial LawConducting disciplinary proceedings

• Whether to suspend?

• Another question to be considered is whether to suspend the employee, if, for example, money is going missing or there has been an incident involving a dispute between employees, then you as the employer have to consider whether you want to get the employee off site. If so the employee should be informed that they are suspended, that suspension is not a disciplinary sanction it is a neutral act, and the suspension will last for a short period of time whilst an investigation can be carried out, this should be confirmed in writing. If on the other hand the reason for inviting the employee to a disciplinary hearing is because of regular but unrelated absences, you may not want to suspend because your aim is to get more, not less, work out of the employee.

Pearson Hinchliffe Commercial LawConducting disciplinary proceedings

• Is further information needed?• So we are at the stage where an incident has come to your attention and you may or

may not have suspended the employee. It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. In some cases, this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, the investigatory stage will be the collation of evidence by the employer for use at the disciplinary hearing.

• In misconduct cases, where practicable, different people should carry out the investigation and disciplinary hearing. This is to evidence that the person investigating the issue is not then the person who makes the decision.

• If there is an investigatory meeting, this should not by itself result in any disciplinary action. Whilst there is no statutory right for an employee to be accompanied at a formal investigatory meeting, such a right may be allowed under an employer’s own procedure.

Pearson Hinchliffe Commercial LawConducting disciplinary proceedings

• Invite the employee to disciplinary meeting

• So you have carried out an investigation and if you have come to the decision that there is a case to answer then you should write to the employee inviting them to attend a disciplinary meeting. The letter should include sufficient information about the alleged misconduct or poor performance and the possible consequences of the meeting to enable the employee to prepare to answer the case at the disciplinary meeting. Copies of any witness statements taken should be included with the letter. Information regarding the time, date and venue of the disciplinary meeting, who will be chairing the meeting and who will be taking notes should be included.

Pearson Hinchliffe Commercial LawConducting disciplinary proceedings

• Right to accompaniment

• The employee should also be informed of his/her right to be accompanied. It is also sensible to ask the employee to confirm their attendance, say, 2 days before the meeting and to inform who will be accompanying them. If the employee has been suspended and been told not to contact the company and told not to contact other workers, the company should offer to arrange for the person requested to accompany to be there if he or she agrees.

• The ACAS Code of Practice details that the chosen companion may be a fellow

worker, a Trade Union representative or an official employed by a Trade Union.

Pearson Hinchliffe Commercial LawConducting disciplinary proceedings

• Right to accompaniment Ctd.

• Most employers will not allow a legal representative such as a solicitor to attend. The recent case of Kulkarni v Milton Keynes Hospital NHS Foundation Trust may be about to change this but only in limited circumstances. Mr Kulkarni was accused of improperly touching a patient and he was not allowed legal representation at the disciplinary hearing. He appealed and argued that his right to a fair trial had been infringed. The Court of Appeal agreed with him. In another case, R v The Governors of X School, it was held that a school teacher was allowed legal representation at a disciplinary hearing because a consequence of the hearing could be that he would be added to the register of individuals who are deemed unsuitable to work with children. Having said this it is highly unlikely that the right to legal representation is going to be given in all cases where employees have a disciplinary hearing. It is only likely to be applied in cases where there are potentially serious consequences such as never being allowed to work in your chosen profession, having your named added to the list of individuals who are unsuitable to work with children or vulnerable people or if criminal liability could result.

Pearson Hinchliffe Commercial LawConducting disciplinary proceedings

• The disciplinary meeting

• So we get to the disciplinary meeting, the employer should have provided all the relevant information by way of witness statements and details of the allegations. At the meeting the employee should be asked if they have any explanation for the alleged misconduct or unsatisfactory performance or, if there are any special circumstances to be taken into account. If it becomes clear during this stage that the employee has provided an adequate explanation, or there is no real evidence to support the allegation, the proceedings should be brought to a close. The approach should remain formal and polite and the employee should be encouraged to speak freely with a view to establishing the facts. A properly conducted disciplinary meeting should be a two way process, questions should be asked to clarify the issues and to check that what has been said is understood, for example, open ended questions such as “what happened next” to get the broad picture and the employer should ask precise closed questions requiring a “yes” or “no” answer when specific information is needed.

Pearson Hinchliffe Commercial LawConducting disciplinary proceedings

• Decide on appropriate action

• If new facts emerge, it may be necessary to adjourn the meeting to investigate them and re-convene the meeting when this has been done. At the end of the meeting, the main point of the discussion should be summarised to bring together the nature of the offence, the arguments and evidence put forward and to ensure that nothing is missed the employer should ask the employee if they have anything further to say. This should help to demonstrate to the employee that they have been listened to and treated reasonably. The disciplinary meeting should then be adjourned before a decision is taken about whether a disciplinary sanction is appropriate. Such adjournment allows time for reflection and proper consideration. It also allows for any further checking of any matters raised, particularly if there is a dispute over the facts. After the meeting, the employer should decide whether or not disciplinary or any other action is justified and inform the employee accordingly in writing. If a decision is taken to dismiss, such a decision should only be taken by a manager who has the authority to do so.

Pearson Hinchliffe Commercial LawConducting disciplinary proceedings

• Decide on appropriate action Ctd.

• The employee should be informed as soon as possible of the reasons for the dismissal, the date on which the employment contract will end, the appropriate period of notice and their right of appeal. [Employees with one year’s service or more have the right to request a written statement of reasons for dismissal and a woman who is dismissed during pregnancy or maternity or adoption leave is automatically entitled to the written statement without having to request it, irrespective of length of service.]

Pearson Hinchliffe Commercial LawConducting disciplinary proceedings

• Right to appeal

• The opportunity to appeal against the disciplinary decision is essential to natural justice and it is important that this is addressed seriously by the employer. The appeal may either be a review of the disciplinary sanction or a re-hearing depending on the grounds of the appeal. An appeal must never be used as an opportunity to punish the employee for appealing the original decision and it should not result in any

increase in penalty as this may deter individuals from appealing.