In our blog I’ve already discussed the importance of conducting investigations into alleged misconduct (see our blog post of 6 March 2020). Assuming therefore that the matter proceeds to a disciplinary hearing, there are important elements to consider.
Disciplinary policy
Ensure you have a clear policy that complies with the Acas code. The guidance can be downloaded directly from the Acas website.
In the letter of invitation to the hearing you should include a copy of the disciplinary policy or advise the employee where they can find it.
Of course having a policy is not enough. It may seem obvious but ensure that you follow it otherwise you risk rendering any dismissal unfair, or at the very least make an appeal likely on the basis of procedural flaws.
Letter of invitation
Key elements to cover are:
- Ensure the employee is given the requisite notice detailed in the disciplinary policy.
- Ensure they are given the right to be accompanied and by whom – a colleague or accredited Trade Union official.
- It is good practice to ask the employee to tell you if they require any additional support because of a disability. If so, consider carefully what reasonable adjustments you may accommodate.
- In cases of gross misconduct, or escalated misconduct, if the hearing may result in their dismissal then say so. It is right to give fair warning.
- Ensure you include all the documents that are relevant to the hearing, including the disciplinary policy. The manager conducting the hearing and the employee should have the same papers.
- Carefully draft the allegations being made against the employee. This is an area where I often see room for improvement as allegations are often vague and inaccurate. The employee must understand what is being alleged in order to properly and fully respond to the allegations.
- It is advisable to ensure that the following procedural elements are dealt with prior to questioning the employee on the allegations and that these points are recorded in the minutes of the hearing:
- Confirm that they received the letter of invitation and all the relevant attachments.
- If they are not accompanied ensure they understood their right to have a companion. If they do have a companion record the fact that they do and that the companion understands their role (this should be set out in the policy).
- Remind the employee that no decision has been made at this point. The hearing is their opportunity to respond to the allegations and present any mitigation. Only after that has happened will a decision be made.
- Advise the employee and their companion that they made request a break at any time.
- Ask if they have any questions before proceeding.
- Once the allegations are dealt with and all questions asked you should summarise the key points before taking a recess to consider the decision.
- What happens during the recess can often be the downfall of an otherwise well conducted hearing:
- Take time to properly consider all the facts, the discussions held in the hearing and the possible sanctions.
- Document the thought process and the reasons why a particular sanction has been deemed appropriate. In the event of dismissal where the matter ends up in an Employment Tribunal hearing the manager making the decision will be glad to have this to refer to and it helps evidence a fair process.
- If present ensure the HR representative’s role is clearly defined as opposed to that of the hearing manager. Providing advice and guidance is entirely appropriate; influencing, or even making, the decision is not.
- When reconvening the hearing ask the employee if they have anything to add before giving the decision. If so, it may be appropriate to adjourn again. If not give them the decision. This should be followed with their right of appeal.