Judge, Jury and Executioner? Avoid the pitfalls when conducting a disciplinary hearing

HR practitioners will be aware of the 'buzz' words connected to a disciplinary process triggered by allegations of misconduct: ensure there is a thorough investigation; operate a fair process; and reach a reasonable outcome.

But what does the Tribunal mean when they assess fairness, consistency and reasonableness in the context of a disciplinary hearing? We have set out some useful tips and guidance below for HR practitioners to consider, when guiding managers through a disciplinary procedure relating to allegations of misconduct.

Thorough investigation

First and foremost, consideration should be given to how the allegation is presented, as the allegation will frame the investigation; the potential subsequent disciplinary process; and sanction available.

Once the allegation has been established, an investigation should be commenced to establish the facts. The Labour Relations Agency Code of Practice advises that 'the employer should make necessary investigations to establish the facts promptly before memories of events fade.'

How much investigation is required will depend on the particular circumstances, however employers should note that in cases which appear to suggest 'obvious guilt':- they will still require 'due and proper' investigation prior to a disciplinary hearing being initiated, as there may be a simple misunderstanding or a credible explanation for certain conduct (e.g. conduct which could be triggered by side effects from prescribed medication).

Fair process

Employees are entitled to a fair hearing. What does this mean? Firstly, the employee should be made aware at outset, of the allegation(s) made against them. The allegations may be clarified as the process develops, but they should not be added to – or changed so significantly so as to undermine the entire process. Hence, careful consideration should go into the framing of the disciplinary criteria.

If a disciplinary hearing is to be commenced, deciding who will conduct the disciplinary hearing is critical. Ideally the disciplinary hearing will not be held by the person who conducted the investigation. Consideration should also be given to who will conduct a subsequent appeal hearing (as the appeal should be considered by someone holding a more senior position to the individual conducting the disciplinary hearing).

If the investigation concludes that a disciplinary procedure should be commenced, the employer must write to the employee to inform them of the following:

  • the nature of the allegation and a brief explanation as to the basis of that allegation, to allow the employee to understand the case against them;
  • date, time and location of the disciplinary hearing and who will be present at the meeting (note that the employee should be given reasonable notice of the disciplinary hearing taking place);
  • their right to be accompanied to the disciplinary meeting by a fellow employee or union representative; and
  • possible consequences of the formal action which may be taken at the conclusion of the disciplinary hearing (for example, in cases of alleged gross misconduct, the employee must be made aware that a possible consequence of the disciplinary hearing could be summary dismissal).

It would also be usual to provide copies of any relevant written evidence in advance of the disciplinary hearing, such as witness statements (however this should be assessed on a case-by-case basis, as it may sometimes be appropriate to redact or anonymise certain information).

Consistency of approach is also of great importance. Managers should follow the organisation's disciplinary procedure as best as possible, to ensure consistency.

That said, employees who suffer from a disability, may require reasonable adjustments to be made to the Company's disciplinary procedure (and failure to make reasonable adjustments for disabled employees could give rise to allegations of unlawful discrimination under the Disability Discrimination Act 1995).

Reasonable outcome

Managers should consider all the relevant evidence available when reaching an outcome following the disciplinary hearing to determine whether or not the allegation(s) against the employee should be upheld. If the manager is satisfied that the allegation(s) should be upheld, careful consideration should then be given to the appropriate disciplinary sanction to be applied. While this is generally a matter for the manager in question (in isolation) everyone should be aware of the thought process a Tribunal Judge will follow, in claims alleging that there has been an unfair dismissal, for example:

  • at the time of dismissal, did the employer reasonably believe that the employee was guilty of misconduct;
  • at the time of dismissal, did the employer have reasonable grounds for believing that the employee was guilty of that misconduct;
  • at the time that the employer formed that belief on those grounds, had it carried out an investigation which was reasonable in the circumstances; and
  • in assessing the disciplinary sanction applied, was such 'within the band of reasonable responses which any employer might come to in those circumstances'.

Therefore, due consideration should be given to the fairness and reasonableness adopted by the organisation, throughout investigation, disciplinary and appeal stages.

Managers will often rely on HR to assist throughout a disciplinary process and particularly when considering the appropriate outcome to be applied. HR practitioners should however be aware of the distinction between HR's role of guiding managers in respect of policies and produce, and the misconceived idea that HR should reach the conclusion, or influence the decision making process. Such misconceptions will call the fairness and impartiality of the decision into question. This is addressed in our article on recent caselaw relating to this point, which can be accessed here.

The outcome reached should be provided to the employee in writing as soon as practicable after the meeting is held. The employee should also be reminded of their right to appeal the decision and if they choose to exercise that right, an impartial appeal process should be conducted in accordance with your organisation's disciplinary policy.

We hope that this will serve as a useful aide memoire for you and for your organisation when facing disciplinary matters. If you would like further guidance or assistance in relation to a particular issue, or generally, please do not hesitate to contact a member of the Employment and Benefits team.

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Date Published: 25 October 2017