Disciplinary Hearings & Procedures

It is important for an employer to have a well-developed disciplinary process so that employees have guidelines on how to behave in the workplace and so that there are clear steps that should be followed when employees do not behave properly.

ACAS Code of Practice on Discipline and Grievance

The minimum standard procedures that an employer must follow when taking disciplinary action against an employee (for example, for something like misconduct or below acceptable performance) are contained in the ACAS Code of Practice on Discipline and Grievance. However, many employers will have developed their own set of grievance rules, which will be based on the Code, but are likely to be considerably more comprehensive.

The basics required by the Code are:

1. That an employer looks into the facts of the situation;
2. Provides a written explanation of the issue to the employee;
3. Arranges a meeting between the parties to discuss it;
4. Thoroughly considers the situation before selecting a suitable course of action
5. Provides the employee with a written decision
6. There is the chance for appeal. 

If a grievance is raised during a disciplinary procedure then the Code provides for the disciplinary process to be temporarily suspended.

Both employers and employees must follow the basics of the ACAS Code of Practice on Disciplinary and Grievance Procedures, which should be covered by any specific workplace disciplinary or grievance procedure. If these basics are not covered and a claim later progresses to an Employment Tribunal, there can be consequences for the parties. An employee’s award of compensation can be increased by 25% if an employer has not complied and reduced by 25% if it is the employee that has not complied.

Accompanying an employee

According to the Employment Relations Act 1999, an employee can be accompanied to a disciplinary procedure by a trade union member or by a colleague (but not by any other person or by a legal representative, unless an employment contract states this) – this is the case for the initial meeting and the appeal, but not for any pre-hearing fact finding sessions. 

If either the employee or the accompanying person cannot make the date and time suggested by the employer this can be postponed for up to five days. Failing to allow an employee to be accompanied will allow an employee to make a claim at an Employment Tribunal. There is a right to a legal representative, such as an employment solicitor, only where the allegations against an employee are so serious as to endanger an employee’s living, not just his or her employment.

Disciplinary hearings

Raising a matter informally with an employee prior to taking formal disciplinary action is not a necessity, yet it is something that many employers will choose to do. Alternatively, others will decide to follow their formal disciplinary procedure straight away. 

When conducting a disciplinary hearing, there are a few important considerations:

• An employer should provide written information on the grievance against the employee, as well as information on the disciplinary procedure that will be used, and a statement of the employee’s statutory right to be accompanied and that the hearing must be attended by the employee.
• An employee with any particular requirements, such as a translator, should be allowed this at the hearing.
• At the start of the hearing, everyone present should be introduced to the employee.
• During the disciplinary hearing there should be a statement of the complaint against the employee and highlighting of any evidence, with the opportunity for the employee to respond (the hearing should be a cooperative process) – including allowing the employee to offer an explanation for the disciplinary offence. 

In addition, the employee should be able to raise queries, provide evidence and witnesses, and confer in private with anyone accompanying the employee. The accompanying person should also be able to ask questions, but cannot answer questions on behalf of the employee. If there are any special circumstances an employee is entitled to ask the employer to take these into account.

• The hearing can be adjourned before the decision is made or a penalty could be imposed, such as a verbal, written or final warning, demotion or dismissal. The decision should be provided in writing to the employee.
• The ACAS Code of Practice on Disciplinary and Grievance Procedures requires that there is a right of appeal. This should be handled by someone else other than the manager who has had previous involvement in the grievance process. As with the original procedure, there is the same right to be accompanied and to have the appeal decision communicated in writing.

Bringing a claim to the Employment Tribunal

In addition to having the right to appeal the disciplinary outcome, employees also have the right to make a claim to the Employment Tribunal should they think the decision of the disciplinary hearing is unfair or they think their employer has acted unlawfully. 

All Employment Tribunal claims must be launched within three months less one day from the date of conduct or decisions that an employee is complaining about. If there is a dismissal for misconduct, the time limit for making an unfair dismissal claim is within three months of the last day of employment. You do not have to wait for the outcome of your appeal before making a claim to the Employment Tribunal if the deadline is fast approaching. 

It is advisable to seek some legal advice from an employment law specialist before starting an Employment Tribunal claim. An employment law solicitor can provide some guidance as to whether you have been treated unlawfully and whether your claim has a chance of success. Speaking to an expert with a good understanding of this aspect of employment law can help to prevent you from investing in a claim that would be dismissed. 

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