Disciplinary Process: What to say/not to say at the hearing

Conducting a Disciplinary Hearing: A Guide for Managers

Conducting a disciplinary hearing can be a nerve-racking process and often managers are unsure of what they can and cannot say at the hearing, which can be costly and reputationally damaging if it goes wrong. Ultimately, it shouldn’t become a debate, discussion or argument and it’s important to be as impartial as possible.

Employers must follow a full and fair procedure in line with the Acas Code of Practice on disciplinary and grievance procedures. The procedure an employer follows, and an employee’s actions, will be taken into account if the case reaches an employment tribunal.

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In this article, we’ll explore the best ways to communicate during the disciplinary procedure. However, before we start, let’s just clarify exactly what a disciplinary procedure is. A disciplinary procedure is a process used to encourage improvement from an employee whose standard of work or conduct is unsatisfactory. A key provision in the ACAS disciplinary procedure states that disciplinary and grievance issues should be dealt with informally. However, where an issue cannot be resolved informally, it may be pursued formally.

Now, onto the disciplinary process. Prior to the hearing, it is important to invite the employee to the meeting, ensuring that the invitation letter contains sufficient information about the alleged misconduct or poor performance and the potential outcome of the meeting.

At the start of the Disciplinary Hearing

• Introduce yourself and any note-taker and inform the employee that minutes will be taken.
• Inform them they have the right to be accompanied, in line with legislation.
• If they have brought a trade union representative, ask for identification.
• If they have not brought in anyone to accompany them, check they are happy to proceed with the hearing alone.
• Check they have received the letter informing them of the disciplinary meeting and that they have understood the allegations against them.
• Check they have had adequate notice (at least 48 hours) and time to read any statements/evidence and the disciplinary hearing procedure that you have sent them. If they state that they have not had enough time to prepare, adjourn the meeting.

During the Hearing

• Ask them to describe the incident/allegation(s) in question.
• If there is more than one allegation, take each one in turn.
• Check they have had any relevant training; refer to documentation and training evidence/records.
• Refer to statements and evidence where necessary.
• Ensure you allow the employee to put across their side of the story and listen to their answers.
• The person accompanying the employee may ask questions on their behalf during the hearing but cannot answer questions on their behalf. If this happens, adjourn the meeting, make it clear to both the employee and the person accompanying them that this is not permissible and note this in the minutes.
• Try to make your questioning open-ended to allow the employee to explain and provide detailed responses and probe areas to get a better understanding of the situation.
• Try to stay open-minded and avoid asking leading questions or assuming the answer before it’s given.
• Try to keep the atmosphere professional and courteous, avoiding hostility, aggression and putting pressure on the employee.
• If the hearing becomes heated or emotional it may be worth adjourning to allow people to compose themselves.
• Ensure clear and legible notes are being taken and that you pace the hearing to allow the minute taker to write them clearly.

Closing the Hearing

• Ask the employee if they have anything to add.
• It’s good practice for you not to give your decision at the end of the meeting until you have fully considered all of the evidence, so inform them of when you will be notifying them of your decision and that the decision will be confirmed in writing.
• Inform them they will receive copies of the notes and ask for copies of any notes that they or the person accompanying them may have made.

After the Hearing (In All Cases)

• Fully consider the representations made during the hearing along with any evidence and decide whether further investigation is necessary.
• When deciding whether any formal sanction is to be issued, consider any mitigating circumstances.
• Write to the employee outlining your final decision within 5 working days or as stated in line with your disciplinary policy.
• If there is more than one allegation, ensure you answer each individually.
• If you issue a warning, inform them of the level and time frame that it will remain “live”.
• Inform them of their right to appeal the decision and to whom and that details will be in the outcome letter. If an appeal is made, invite the employee to an appeal hearing where you will hear all the evidence to make a final decision.

Dismissal

If you summarily dismiss the employee (i.e., it is gross misconduct), inform them of any outstanding payments to be made and any contractual obligations on either side.

It is vitally important to always refer to the disciplinary procedure steps within your company handbook. If you would like help reviewing your policy, training your team, or support with a disciplinary issue, please do give us a call. We’re a friendly bunch and provide outsourced HR support and advice that has a really positive impact on your business. Let us make a difference by calling us on 01473 360160.