HR Services | Disciplinary Hearings

Why do we need it?

A disciplinary hearing could be required if, as we all want to work in an environment where there are never any employer/employee issues, problems occur.

Regrettably the world is not like that and a frame work needs to be established so that issues are dealt with in a structured and fair manner. The overall objective should always be to sort out the problem so that harmonious way forward can be found for both employer and employee to continue the relationship.

Sometimes this can’t happen and sanctions need to be imposed and they could lead to a disciplinary hearing.

Remember any sanction should be clearly documented including the length of time it is applicable – what steps the employer expects the employee to take to address any identified shortcomings, be they competence or to overcome specific disciplinary actions e.g. persistent lateness, what steps the employer can take to help the employee e.g. training opportunities.

The disciplinary procedure should always be found in the employee handbook and should always be referred to in the employee’s own employment contract. Normally it is cross referenced to a non legally binding handbook.

How to administer it?

I have set out below a typical disciplinary procedure which is applicable for any small or medium size company. For more help please email me via here >>>. The ACAS website can also provide some useful background help.

Newman HR UK employment law advice Termination of Employment letter

The Policy

1. Purpose

The purpose of the disciplinary procedure is to encourage and maintain acceptable standards of conduct and performance at work.

It is important that any disciplinary action including a disciplary hearingis considered and fairly applied.

This procedure sets out the action that will be taken when disciplinary rules are breached.

2. Principles

No disciplinary action (except suspension) will be taken until all the relevant facts have been fully investigated.

At every step of the procedure, you will be advised of the nature of the problem. You will have the opportunity to explain your case fully.  Your comments and explanations will be taken into account before any decision is taken.

At all stages in the procedure you may be accompanied by a work colleague.  If you are less than 18 years of age, you may have either or both of your parents/guardians present.  The role of your colleague is to act as your witness or to speak on your behalf (whichever you prefer) but not to answer questions directed to you.

You have the right to appeal against any disciplinary penalty.

3. Procedure

The standard disciplinary procedure consists of three basic steps:

Step 1 – Statement of grounds for action and invitation to a meeting
•    You will be notified in writing as to the alleged breach and invited to attend a meeting to discuss the matter.

Step 2 – Meeting
•    A meeting will take place at which the alleged breach will be discussed.  You will have the opportunity to respond to the allegations / explain your case fully.
•    You must take all reasonable steps to attend the meeting and may be accompanied by a work colleague.

Step 3 – Appeal
•    You have the right to appeal against any disciplinary decision.  Any such appeal should be put in writing to the next level of management above the chairman of the hearing. (in small companies this may be difficult but if necessary ask your accountant or another person at an equivalent level to hear the appeal) within five working days of confirmation of the disciplinary action.
•    You will be invited to attend a further meeting
•    You should take all reasonable steps to attend the meeting.
•    You may be accompanied by a work colleague
•    You will be informed of the final decision. This will be confirmed in writing.
•    This is the final stage of appeal

4. Disciplinary Actions

The procedure normally follows a number of stages (stage 1 – 4 as outlined below).  The seriousness of unsatisfactory conduct or performance, together with any mitigating circumstances and whether the employee already has received a valid disciplinary warning, will determine the level at which the matter is dealt with.  For example, in serious cases it may be appropriate that a written or final written warning be issued in the first instance without any previous warnings.

Stage 1 – Oral Warning

If conduct or performance does not meet acceptable standards, the employee will be given a formal oral warning.  The oral warning will be confirmed in writing and will remain on the employee’s file for 6 months.

Stage 2 – Written Warning

Where an offence is serious, where there is no improvement in conduct or performance following an oral warning or where a further offence occurs, a written warning will be given.  The warning will give details of the complaint and its implications.  A written warning will remain on the employee’s file for 12 months.

Stage 3 – Final Written Warning

If a further offence occurs following a written warning i.e. conduct or performance is still unsatisfactory a final written warning will be given. A final written warning will give details of the complaint and its implications.  The warning will remain on file for up to 18 months.

Stage 4 – Dismissal

Where conduct or performance is still unsatisfactory following previous warning(s) or if a further serious offence occurs, the employee will be dismissed.

The employee will be provided in writing with the reasons for dismissal, the date on which employment will terminate and the right of appeal

Gross Misconduct

After a full investigation and after being given an opportunity to state their case at a disciplinary hearing, an employee found to have committed gross misconduct will be dismissed with or without notice unless s/he can show substantial mitigating factors.  Examples of what is considered to be gross misconduct can be found in Section A of the disciplinary rules document.

An employee may be suspended with pay pending the investigation of an alleged act of gross misconduct.  Suspension will normally be for not more than five working days whilst the complaint is investigated.  The reasons and terms of the suspension will be confirmed in writing to the employee.

N.B In the case of gross misconduct the Company reserves the right to vary the disciplinary procedure in line with the Employment Act 2002 (Dispute Resolution) Regulations 2004 which means the employee may not be present  the details can be exchanged by correspondence and the process is streamlined to  a hearing and appeal.

The following is a non-exhaustive list of examples of misconduct.  The list is split into two sections.

Section A

If, after investigation, it is confirmed that an employee has committed an offence of the following nature (the list is not exhaustive), the normal consequence will be dismissal:

  1. Theft
  2. Fraud
  3. Deliberate falsification of records
  4. Fighting
  5. Assault on another person
  6. Threatening behaviour, or gross verbal abuse
  7. Deliberate damage to company property
  8. Unauthorised use of Company property or equipment
  9. Being incapable of satisfactory work performance through being under the influence of alcohol, drugs or other substances
  10. Absence from work during work hours without prior permission.
  11. Serious negligence which causes unacceptable loss, damage or injury
  12. Misuse of the company’s computers and electronic communication systems
  13. Wilful or negligent disregard of health and safety rules and procedures
  14. Unauthorised disclosure of confidential information including passing any Company information whatsoever on to competitors
  15. Refusal or deliberate failure to carry out a reasonable and lawful direct instruction given by management
  16. Discrimination or harassment on the ground of sex, race, or disability

Section B

Offences which do not fall within Section A will not normally result in dismissal without prior warning:

  1. Failure to perform satisfactorily the duties of the post.
  2. Unsatisfactory timekeeping
  3. Failure to comply with the Company’s procedures for the notification of sickness absence
  4. An unacceptable level of attendance (note: where no underlying medical condition exists and there is an unacceptable level of absence, then the disciplinary procedure may be utilised)
  5. Failure to carry out a reasonable instruction
  6. Behaviour liable to bring the Company into disrepute.
  7. Behaviour not conducive to good order or working relationships
  8. Smoking in a no smoking area

How to prepare for a disciplinary hearing?

  • Make sure you have all relevant facts and documents (including details of any past disciplinary action taken against the worker) available for the disciplinary hearing.
  • Carry out a full investigation.
  • Arrange a suitable time, date and venue for the disciplinary hearing.
  • Inform the worker in plenty of time so they can prepare their case and consult any representatives. Give them details of the complaint, the procedure to be followed, the need for them to attend a disciplinary hearing, their right to be accompanied at the hearing by a colleague or trade union official, their right to delay the hearing by up to five days if their chosen representative cannot attend and the text of any witness statements if heavy reliance is to be placed on them.
  • Inform any managers and witnesses who may need to attend.
  • Obtain witness statements from any witnesses unable to attend the hearing
  • Arrange for someone to take notes.
  • Arrange for another manager to attend the hearing to act as a witness to the proper conduct of the hearing.
  • If the worker is a trade union official, it is advisable to discuss the case with a full-time trade union officer or senior trade union representative.

When holding a disciplinary hearing:

  • Introduce everyone present and explain why they’re there
  • Explain that the reason for the hearing is to consider whether disciplinary action should be taken against the worker
  • Explain how the disciplinary hearing will be conducted
  • Describe the exact nature of the complaint and go through the evidence
  • Allow the worker to see any statements made by witnesses if they have not already seen them
  • Give the worker a chance to state their case and to respond to any allegations made
  • Ensure that you get all the facts relating to the complaint and take note of any special circumstances
  • Summarise the main points made by both parties and highlight any issues that need to be investigated further
  • Adjourn to consider your decision
  • Reconvene to let the worker know of your decision and ensure that they’re clear about what’s likely to happen next

If it becomes clear during the disciplinary hearing that the worker has a satisfactory explanation for their conduct/performance the hearing should be stopped and no further disciplinary action taken. The ACAS Handbook on Discipline and Grievances at Work suggests other situations where the hearing may be adjourned eg, if the worker is too distressed to continue or further investigation seems necessary.

Informing the worker of a disciplinary decision:

Following a disciplinary hearing, you should inform the worker as soon as possible in writing of:

  • the result of the hearing –
  • the consequences of repeating the offence and what specific improvement is required – if any
  • how long the warning is going to remain in force
  • the likely consequences of repetition of the misconduct
  • their right of appeal and how this should be done