A disciplinary is when an employer and employee have a formal meeting to address concerns relating to an employee’s conduct, performance, or absence. It’s an important part of the formal disciplinary procedure that’s conducted after an initial investigation has ascertained that there is a case to answer. The prime objective is to establish the facts of the circumstances in a fair and transparent manner. This allows the employer to explain the allegations and share any evidence, whilst the employee has an opportunity present their own evidence and call witnesses. Typically, hearings are instigated following misconduct (inappropriate behaviour like bullying, harassment, or unauthorised absence), gross misconduct (examples include theft, violence, or fraud), and performance (an ability to meet job performance standards). Following a fair process is essential; this is guided by the Acas Code of Practice, and specific standards must be met. They included an employee’s right to be accompanied, notice and evidence must be written, and the person leading the hearing should be impartial.
If your business finds itself in the situation where it has to hold a disciplinary hearing, then you’ll need to hold an investigation prior to that. It’s an essential part of the process.
In this guide, we’ll look at the rules on verbal warnings, using formal, and informal warnings; and the how to stay on the right side of the law legal rules when actioning one against an employee.
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Every employer will have to deal with grievances and conduct issues from time to time.
Sometimes, a verbal or written warning is considered reasonable for particular issues. But for more formal allegations, like gross misconduct, you need to action a disciplinary hearing.
These hearings have their own legal requirements. If you follow an unfair hearing, you could face tribunal claims, compensation penalties, and reputational damages.
In this guide, we'll look at what a disciplinary hearing is, UK laws on misconduct, and how to manage a disciplinary meeting appropriately.
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A disciplinary hearing is a meeting where an employer highlights evidence of inappropriate behaviour or misconduct. A disciplinary procedure may be actioned for any reason affecting:
: Like, smoking on the work-premises.
Absence: Like, taking too many unauthorised leave days.
Personal problems: Like, constant lateness.
What is the UK law on disciplinary hearings?
In the UK, there is no specific employment law on disciplinary hearings. However, there are relevant standards every employer should adhere to.
The ACAS Code of Practice on Disciplinary and Grievances Procedures are guidelines on managing workplace issues. It's not a legal requirement to follow the Code, but it's proven to be beneficial for businesses. Disciplinary hearings:
Can reduce the risk of tribunal risks being raised.
Are more than likely make claims less successful for the opposition.
Can provide a 25% uplift on claims which don’t adhere to the Code.
Your disciplinary procedure should ideally be included in every written employment contract and company handbook.
The process must also be fair and reasonable. If a hearing is unfair, the employee could raise their claim to . For example, they could claim constructive dismissal if they were forced to leave because of how they were treated by their employer or the business.
How to manage disciplinary hearings in your workplace
Hearings are just one aspect of your disciplinary procedure, but they're a vital part. Without a proper meeting, both the employer and employee cannot defend themselves fairly–leading to unfair disciplinary action.
Let's look at ways to manage a disciplinary hearing in your workplace:
Ask questions relevant to the case
Whether the conduct was minor or serious, it's crucial to settle issues by asking relevant questions. For example, an employee may answer questions like:
Do they know why the meeting has been called?
Have they received a written account of the allegation (within a reasonable amount of time)?
Are they aware of disciplinary action relating to the allegation?
Do they understand the conduct relating to the investigation is unacceptable?
Are they aware of their legal rights as an employee?
Do they have reasonable time to prepare for the meeting?
Take notes during the disciplinary meeting
During the meeting, the employer should take notes on the conversations.
These notes can cover what questions were asked, who asked them, and what the responses were. You can also make footnotes for any evidence submitted, like witness statements.
Meeting notes can be written or digitally recorded, but only if the employee agrees before the disciplinary meeting. And the person taking notes must have no direct connection to the employee's case. (However, in some cases, the meeting chair may choose to take notes).
Taking notes is also beneficial when claims are escalated to the employment tribunal. Here, they act as evidence of the disciplinary process for the employer.
Allow employees to bring representation
Every employee is legally allowed to bring representation into a disciplinary hearing. They can bring a trade union representative or other employees (like a senior manager or a work colleague from the HR department).
The representative isn’t allowed to answer on anyone’s behalf, even if the employ may choose to allow it. Most of the time, representatives aren’t there to stand as a witness or give legal advice. An employee will bring them for moral support (like a close co-worker or family member).
Schedule appropriate breaks
No employer can foresee how long a hearing will last. Whether they're for an hour or longer, you need to schedule appropriate breaks.
You can offer a short break within the meeting, so people can 'take a breather' if they're feeling emotional. For a longer hearing, provide a 'full-day' break, so an employee can go through the evidence or invite further witnesses.
End the disciplinary meeting accordingly
After the evidence and statements have been scrutinised, you'll have reached the end of the hearing.
The employee should read and sign the notes taken during the hearing. A copy must be given to them (and their trade union representative) as soon as possible.
An employer should avoid passing a final decision at the end of a hearing. It could lead to a biased or preconceived verdict and may cause allegations of an unfair disciplinary procedure.
What happens after the disciplinary hearing?
Once the meeting has been adjourned, you need to review all relevant information provided by the employee. This must be done before making a final decision without unreasonable delay.
The employee should receive a letter which outlines the hearing outcome and what disciplinary action will follow. For example, the final outcome could be:
Does an employee have the right to appeal the final decision?
Yes, an employee is allowed the the final decision. They'll need to request this to their employer, as soon as possible.
An employee can start a ‘right to appeal’ process if they believe the final decision was unfair. For example, the employee didn't go through the evidence at the meeting within a reasonable time. Therefore, they deem the final outcome as unfair.
FAQs: What is a disciplinary hearing?
Do employers have to follow a specific procedure?
Employers should adhere to the Acas Code of Practice, as well as any internal company policies. Failing to do so could result in an employment tribunal.
Can the same person investigate and chair the hearing?
In the interest of impartiality, the roles of investigator, hearing chairperson, and appeal officer should be undertaken by different individuals.
How much notice must employers give the employee?
“Reasonable” notice must be provided. This is usually ranges from 48 hours to 5 working days, allowing employees to prepare and arrange for a companion.
What should happen if the employee is off sick and can’t attend?
Firstly, employers should attempt reschedule the meeting. If the employee is still unable to attend, other avenues should be explored, like holding the meeting at a neutral venue or allowing them to provide a written statement.
Can the hearing be recorded?
The meeting can be recorded—or detailed minutes can be taken. However, it’s imperative that all parties are notified if this is the case. It’s advisable to take notes, and minutes should be shared with respective employee should they need correction.
Get expert guidance on disciplinary hearings with Peninsula
It doesn’t matter what the misconduct is, you need to deal with all disciplinary issues accordingly. An employer could face compensation penalties and reputational damages if they fail to follow fair procedures.
Peninsula offers expert guidance on disciplinary meetings. Our HR team offers 24/7 HR employment advice which is available 365 days a year. We also provide advice through multi-lingual support and fully trained counsellors who are ready to help.
Want to find out more? Contact us on 0800 028 2420 and book a free consultation with an HR consultant today.
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