In cases where informal action is not appropriate, because the misconduct or performance is too serious or informal action has not brought about an improvement in the past, formal disciplinary action will be necessary. A disciplinary hearing will need to be held, to give the employee an opportunity to put his or her side of the case.
The company should schedule the disciplinary hearing for a date that gives the employee adequate time to prepare for it. The company must then write to the employee to let him or her know the date, time and venue of the hearing and confirm that he or she has the right to be accompanied at the hearing (the right to be accompanied ). The timing and location of the meeting must be reasonable: the ACAS Code suggests that, where possible, they should be agreed with the employee. It also suggests that the employee's companion should be allowed a say in the date and time of the hearing.
The letter should also confirm what misconduct is alleged and what the potential disciplinary sanction might be, and summarise the evidence that the company has gathered during the investigation. This information needs to be sufficiently detailed to enable the employee to dispute the company's evidence, produce evidence of his or her own and argue his or her case. It may therefore be appropriate to give the employee copies of any statements that have been taken from witnesses or a summary of what they contain. The employee may want the witnesses to attend the hearing so that he or she can question them. Where witnesses have concerns about attendees, companies should seek the advice of their Association.
Rescheduling and non-attenders
The ACAS Code advises that, if an employee is unable to attend a disciplinary hearing, he or she should notify the employer and give the reason for non-attendance as soon as possible, and preferably in advance of the meeting, so that it can be re-scheduled. The Code also states that an employer may inform a worker that a decision will be made in his or her absence should he or she fail to attend the re-arranged hearing without good reason.
If the employee's chosen companion is not available at the time a disciplinary hearing is scheduled, the worker is entitled to have the hearing postponed to another time, provided it is reasonable and falls within five working days (excluding week-ends and public holidays) of the day originally proposed. It might not be reasonable, for example, to postpone the hearing to a date when the manager responsible was away on business or holiday, unless someone else could step in to take the hearing.
In some cases, a witness may only be prepared to give evidence on the basis that he or she will not be identified. This could happen, for example, where the witness has a genuine fear of reprisals by the employee. In this situation, the company needs to balance the need to protect the informant and the need to provide a fair hearing for the employee. A detailed statement should therefore be taken from the informant and corroborative evidence should be obtained wherever possible. If practicable, the employee should be given a copy of the informant's statement with omissions that avoid the informant being identified.
Since the informant may have reason to fabricate evidence against the employee, enquiries may need to be made into his or her character and background, to establish the value of the evidence. The manager running the disciplinary hearing should interview the informant and be satisfied that weight is to be given to the evidence. If the employee raises a point during the hearing that needs to be put to the informant, it may be necessary to adjourn the hearing to allow the manager to do so.
A suitable venue will need to be found for the hearing, which is out of the way of other employees and where interruptions are unlikely. If the employee concerned is disabled, reasonable adjustments may be required under the Disability Discrimination Act 1995.
Ideally, the manager who conducts the hearing should be different from the manager who conducted the investigation, although this may not be practical in smaller companies. If a manager needs to give evidence to the hearing, he or she should not conduct it. A second member of management should be present to take notes.
The manager conducting the hearing should consider in advance how the hearing should be structured, and should make a note of the points to be covered. An outline structure for the hearing might look like this:
- Open the hearing.
Introduce those present to the employee and explain why they are there. Explain that the purpose of the hearing is to establish whether disciplinary action should be taken under the company's disciplinary procedure, and explain how the hearing will be conducted and who will make the decision.
- Explore the complaint.
State the allegations being made against the employee and present the evidence. Give the employee an opportunity to state his case, ask questions, give evidence and call witnesses. Allow time for general questioning and discussion. If the facts are not clear and further investigation is necessary, adjourn the hearing until a later time or date. If the employee becomes upset during the hearing, adjourn the hearing temporarily to allow the employee to compose him or herself. If the employee continues to be so upset that the hearing cannot continue, reconvene it at a later time or date.
- Sum up.
Summarise the main evidence relating to the misconduct and the main points raised by the employee. Explain that the company will now decide on the appropriate action and let the employee know when he or she will be informed what this is.
After the hearing is over, the manager who conducted it will need to take time to consider the matters raised. In particular, the manager will need to decide the facts of what took place, which may involve assessing conflicting evidence and deciding on the balance of probabilities whose version of events is true. It is important for the manager to consider all the issues fully, and not rush to a hasty conclusion, in order to avoid any impression that the manager had already made up his or her mind before the hearing began.
If points are raised during the hearing that need to be investigated, then the manager should adjourn the hearing to allow this to happen. The ACAS Code gives advice on how to deal with the situation where a worker raises a grievance related to the case. It suggests that it may be appropriate to suspend the disciplinary procedure for a short period to allow the grievance to be considered. Depending on the nature of the grievance, it might also be advisable to consider bringing in another manager to deal with the disciplinary case. Companies in this situation may wish to contact their Association for advice (EEF Associations).
Workers have the right to be accompanied at disciplinary and grievance hearings if they reasonably request to be, both under the Employment Relations Act 1999 and under the statutory minimum disciplinary, dismissal and grievance procedures that were established by the Employment Act 2002. The ACAS Code of Practice on disciplinary and grievance procedures ( Disciplinary and grievance procedures ) gives guidance on how this right should operate in practice. In a disciplinary context, the right applies to any hearing that could result in the imposition of a warning that forms part of the employee’s disciplinary record or some other disciplinary sanction, including dismissal, and to any appeal hearing. (Under the statutory minimum dismissal procedure, employees are entitled to be accompanied at a meeting with their employer before being dismissed, and at any appeal meeting, regardless of the reason for their dismissal.)
The right to be accompanied applies not only to employees and apprentices, but also to any other workers who have contracted to work personally for the company, agency workers and home workers. Casual, seasonal and part-time workers are all likely to qualify, as may self-employed labourers. The right does not extend, however, to the genuinely self-employed, who are working for a company in the course of their own profession or business.
The worker can choose who accompanies him or her, provided that person falls within one of the categories laid down in the legislation. Those categories are:
- another worker who works for the company;
- a full-time trade union official;
- a lay official whom the union has certified in writing as having experience or training in accompanying workers at disciplinary or grievance hearings.
The choice of companion is the worker's. However, the ACAS Code advises workers to bear in mind that it would not be reasonable to insist on being accompanied by a colleague whose presence would prejudice the hearing or who might have a conflict of interest. Furthermore, it would not be reasonable to ask to be accompanied by a colleague from a distant location when someone suitably qualified was available on the worker's own site. The chosen companion is, of course, free to refuse to act.
The worker is legally entitled to choose an official of a trade union that the company does not normally deal with. However, the ACAS Code advises that, where a union is recognised, it is good practice for an official from that union to accompany the worker.
The ACAS Code suggests that the worker should tell the company before the hearing who his or her companion is to be. In certain circumstances (such as where the companion is an offical of a non-recognised union), it may be helpful for the company to contact the companion before the hearing.
If the worker's chosen companion is not available at the time the disciplinary hearing is scheduled, the worker is entitled to have the hearing postponed to another time, provided it is reasonable and falls within five working days (excluding week-ends and public holidays) of the day originally proposed.
Unless the worker has indicated that he or she does not want the companion to do so, the companion is entitled to address the hearing in order to put or sum up the worker's case, and to respond on the worker's behalf to any view expressed at the hearing. The ACAS Code advises that it would be good practice also to allow the companion to ask questions on the worker's behalf and to participate as fully as possible in the hearing. However, the companion is not entitled to answer questions put to the employee, and must not conduct him or herself in a way that prevents the company from explaining its case or prevents anyone else at the hearing from making their contribution. The companion must be allowed to confer with the worker during the hearing.
Some companies have disciplinary procedures that allow employees to be accompanied by a wider range of companion and give the companion a fuller role. Some procedures, for example, allow the companion to speak for the employee.
Union officials and workers who work for the company have the right to a reasonable amount of paid time off work to accompany a worker at a disciplinary hearing. The ACAS Code advises that it would be good practice also to give the companion time off to familiarise him or herself with the case and confer with the worker before and after the hearing.
It is not only unlawful for a company to deny a worker the right to be accompanied. It is also unlawful to penalise a worker for taking up the right, or to penalise the companion for carrying out the role. It is automatically unfair to dismiss a worker or his or her companion on these grounds, regardless of their age or length of service. This also covers selection for redundancy. If an employee is dismissed as a result of a disciplinary hearing at which he or she was denied the right to be accompanied, he or she could allege that the dismissal was unfair on that basis.
Special provision may need to be made for disabled employees. The Disability Discrimination Act 1995 requires employers to make reasonable adjustments to accommodate disabled workers (duty to make adjustments ). It may be reasonable, for example, for an employer to allow an employee with a learning disability to be accompanied by a friend from outside work, even if the company's disciplinary procedure and the statutory right to be accompanied do not allow for this. The ACAS Code suggests that employers should also cater for any disability that a companion might have.