Guidance Note Conducting a Disciplinary Hearing

• The date, time and place where the disciplinary hearing will be held and name of person conducting the hearing.
• The nature and details of the allegation against the employee.
• Details of the evidence against the employee (normally done by enclosing hard copies of the evidence i.e. witness statements)
• The potential outcome if found guilty of the alleged conduct.
• The employee's right to be accompanied to the meeting by a colleague or trade union representative.

Setting out the case against the employee
It is a fundamental part of a fair disciplinary procedure that an employee is informed of the case against them. The Acas Code requires the employee to be given written notification of “sufficient information about the alleged misconduct or poor performance and its possible consequences to enable the employee to prepare to answer the case at a disciplinary meeting”.

When informing an employee of the disciplinary case against them, this is done in the letter inviting the employee to a disciplinary hearing and there are two important principles to bear in mind:

1) Be precise in framing the allegation. and
2) Make the employee aware of the severity of the allegations against them.
For example, in relation to an allegation of theft of £50, the employee should be told:
• the allegation is theft of £50.
• the date, time (if possible) and place the money was allegedly taken from.
• That if found guilty at the disciplinary hearing one possible outcome will be dismissal.
Although the above may seem obvious, not providing enough detail about the allegation is a common trap for employers to fall into. It is not uncommon to see invitation to disciplinary hearing letters that simply state “the allegation against you is theft” without providing any further detail.

Disclosing the evidence
Ideally all witness statements and other physical evidence that will be relied on and referred to at the disciplinary hearing should be made available to the employee before the disciplinary hearing. This is usually done by enclosing the relevant evidence with the letter inviting the employee to attend the hearing. As mentioned above (Setting out the case against the employee) it is fundamental that the employee has a full picture of the nature of the allegations and the case they have to meet, this will be very difficult unless the relevant evidence has been disclosed to the employee prior to the hearing.

When inviting an employee to attend a disciplinary hearing, the employer should consider exactly what evidence it will need to refer to and rely on at the hearing in order to prove the case. Once this is settled, the employer will then have to consider how best to make the evidence available to the employee.

Witness statements will always be in writing so are fairly straightforward but there are a number of ways the employer could make physical evidence available for example, CCTV footage, i.e. transcribe the relevant section of the footage and send it to the employee as a document, burn a copy of the footage to a disc and send it to the employee to view or alternatively, allow the employee access to the workplace to view the CCTV prior to the hearing.

Non-attendance and requests to postpone
Once an employee has been invited to attend a disciplinary hearing, a common problem for employers is the employee's unavailability or failure to attend on the chosen hearing date.

If an employee fails to attend the first hearing date, the employer should contact the employee to find out the reason for their non-attendance. Where the non-attendance is due to circumstances out with the employee's control (or where the employer has been unable to establish the reason for non-attendance), it will usually be good practice for the employer to re-arrange the meeting to an alternative date, in order to give the employee a further chance to attend. If however the employee persistently seeks to postpone the re-arranged meeting or simply fails to attend without good reason, the employer should re-arrange the hearing for a final time and write to the employee informing them that if they fail to attend on this occasion a decision will be made in their absence. Employer's should be careful about using this approach however especially when contemplating dismissal.

Where the reason for non-attendance is the unavailability of the employee's chosen companion, there are specific statutory rules that apply. If the employee's companion cannot attend on the proposed date, the onus is on the employee to suggest another date, and the employer must accept it so long as it is reasonable and it is not more than five working days after the date originally proposed by the employer. In practice this five-day time limit is often extended by mutual agreement, particularly during summer and Christmas when holidays have a major impact on the availability of parties.

Ill health and stress
Having been invited to attend a hearing, it is not uncommon for the employee to absent themself from work by reason of ill health, normally citing “stress” or “workplace stress”. This can be difficult for employers to manage because it is in all parties' interests to conclude matters as quickly as possible but at the same time, if the employee is genuinely too unwell to attend a meeting they cannot be forced to attend.

If the employee is only absent for a short time, it will be appropriate for the employer to re-arrange the hearing for a date after the employee is due to return to work. If on the other hand the employee is signed off for a longer period or submits successive short term fit notes, the employer should consider requesting an occupational health or GP's report on the employee's fitness to attend a hearing. Employees often expect that by getting themselves signed off with stress they can avoid disciplinary proceedings. However, the medical view is often rather different and in fact, the DWP's Health and Work Handbook states that the effects of an unresolved disciplinary on the employee's mental health may be greater if the proceedings are postponed than if they are concluded swiftly.

It is worth emphasising to the employee that fitness to work and fitness to attend disciplinary hearings are not the same thing and if the employee still refuses to attend the hearing, an OH report should be sought. In most cases OH will be of the view that the employee is fit to attend a disciplinary hearing and will explain to the employee that seeking to prolong the process is not helping their health. This independent advice can be useful in persuading the employee to attend the hearing but if not, there is no way to compel a sick employee to attend a hearing.

Should things reach a point where delay can no longer be tolerated, the employer will need to make a decision and draw a line under the matter. If an employee is still unable to attend the disciplinary hearing, the employer should consider other ways of proceeding, for example by conducting the meeting by telephone, at a neutral place or location nearer the employee's home address, or even inviting the employee to make written submissions and holding a hearing in their absence. The employee would still have the right to appeal against the decision and a full rehearing could be held at that stage if requested and appropriate.

Ultimately, unless alternative arrangements can be reached, the employer's last option is to hold a disciplinary hearing in the employee's absence and make a decision on the basis of all the evidence available.

Procedure at the disciplinary hearing
In summary, the procedure to follow at a disciplinary hearing is as follows:
• To start with, the manager conducting the hearing should introduce those present and, if the employee is unaccompanied, remind the employee again of their right to be accompanied.
• The manager should confirm that the employee has received copies of any documentation that may have been sent to them i.e. witness statements and copies of other physical evidence. Any minute or note-taking arrangements should be discussed and confirmed.
• The manager should lead the meeting and explain in some detail the allegations that have been made against the employee and what evidence the employer is relying upon in support of those allegations.
• The employee (or their companion) should be invited to ask questions as necessary.
• The employee should then be given a reasonable opportunity (with the assistance of their companion) to present their version of events and produce any evidence in support.
• Once the employee has presented their case, the employer should summarise the information put forward by both parties and inform the employee that the meeting will be adjourned while the manager considers the outcome.
Adjourning for further investigation or decision
Once both sides of the case have been presented and there are no further questions, the hearing should ideally be adjourned. Depending on the points raised by the employee at the hearing, the manager may need to go and do some further investigation before coming to a decision. If new information does come to light during the further investigation it should be given to the employee in writing, with sufficient time to consider it before giving the employee the opportunity to respond at a reconvened hearing.

Even if there is no need for further investigation and the employer has an idea as to the sanction it wishes to impose, the hearing should be adjourned for the manager to consider the decision. This ensures that proper consideration is given to what has been discussed at the meeting and that the employee can see that they have been treated fairly and reasonably. Announcing the decision immediately after the employee has finished speaking leaves an employer open to the accusation that the hearing outcome was predetermined.

The length of the adjournment will depend on the complexity of the issues to be considered and whether further investigation is needed. In a relatively straightforward case, waiting until the following day to draft and send an outcome letter to the employee is recommended but where there are numerous, complicated issues or matters that require further investigation, the outcome letter may not be ready for weeks. The employee should be given an indication of how long it is likely to be before the meeting is reconvened to communicate the decision.

Right to be accompanied
Workers and employees have a statutory right to be accompanied at a disciplinary or appeal hearing by:

• a trade union representative. or
• a fellow worker.

Employers should note that this right only extends to disciplinary and appeal hearings, it does not extend to investigatory meetings.

Choice of companion
The worker does not have to be a member of the trade union to which the official belongs and it does not need to be a trade union recognised by the employer. If the employee is accompanied by a fellow colleague, there is a statutory right for the companion to receive paid time off during working hours whilst acting in that capacity.

Reasonable requests
The right to be accompanied only applies where a worker reasonably requests to be accompanied at the hearing. There is no definition of “reasonable request” although the Acas Code suggests by way of example that it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing.

Unavailability of companion
Where an employee's chosen companion is unavailable at the time proposed for the hearing by the employer, the employee has the right to suggest an alternative time which is not more than five working days later than the original hearing date. In practice it is advisable for an employee (or their companion) to give a range of available times, to increase the likelihood of finding a date/time suitable for all parties.

Role of companion
The role of the companion is limited. The companion is permitted to address the disciplinary hearing (including putting the worker's case, summing up, and responding on the worker's behalf to any view expressed at the hearing) and to confer with the worker during the hearing. There is no right to answer questions on behalf of the worker, address the hearing contrary to the worker's express wishes, or act in a way that prevents the employer explaining its case or prevents any other person making a contribution to it.

The decision Guilty or not guilty
When considering the outcome it is important for employers to bear in mind that a disciplinary hearing is not a criminal trial and they do not have to be convinced of the employee's guilt “beyond reasonable doubt”. Instead, in an employment context, the decision maker must have:

• a “genuine belief” in the employee's guilt.
• the genuine belief in the employee's guilt must be based on reasonable grounds.
• the employer should have carried out as much investigation as was reasonable in the circumstances. and
• when deciding on the sanction to impose, the outcome should be fair and reasonable in all the circumstances of the case.
Sanction – warnings and dismissal
Once the employer is satisfied of the employee's guilt, they will then have to consider the appropriate sanction for the employee. As mentioned above, the sanction should be fair and reasonable taking account of all the circumstances of the case.

Warnings
The most common disciplinary sanction is to issue the employee with a formal warning – that may be a verbal warning, first written warning or a final written warning and the warning should be for a defined period of time. The Acas Code recommends that employees should usually be given at least one chance to improve before receiving a final written warning. In other words, an employee who is guilty of a first offence of misconduct would normally expect to receive no more than a first written warning.

The Acas Code states:
“Where misconduct is confirmed or the employee is found to be performing unsatisfactorily it is usual to give the employee a written warning. A further act of misconduct or failure to improve performance within a set period would normally result in a final written warning. If an employee's first misconduct or unsatisfactory performance is sufficiently serious, it may be appropriate to move directly to a final written warning. This might occur where the employee's actions have had, or are liable to have, a serious or harmful impact on the organisation”.

It follows that when dealing with ordinary cases of misconduct (as opposed to serious/gross misconduct) an employer should take a three stage approach to discipline:

First misconduct offence – 1st written warning (normally “live” for 6 months)

Second misconduct offence – Final written warning (normally “live” for 12 months)

Third misconduct offence – Dismissal

The Acas guidance on disciplinaries and grievances at work states that warnings should “normally” be live only for a set period (six months for a first written warning and 12 months for a final written warning). The guidance does not however rule out the employer imposing longer periods for the warning, particularly where an employee has a history of allowing their conduct to lapse just after the expiry of warnings. An employer should only take live warnings into account when deciding on the appropriate sanction for subsequent acts of misconduct. any expired warnings should be disregarded.

Dismissal
Dismissal is the ultimate sanction and can occur in two scenarios:

1) where an employee on a live final written warning commits a further act of misconduct. or
2) an employee commits an act of misconduct so serious that it may be termed gross misconduct.
Employers can lose tribunal claims where, despite having followed a fair procedure, they have not persuaded an employment tribunal that dismissal was a reasonable sanction in all the circumstances. Taking account of all the circumstances would involve:

• The relevant background to the offence, including previous warnings or similar incidents.
• The employee's length of service.
• The employee's prior disciplinary record.
• Whether the employee admitted the offence and showed remorse.
• Whether the employee was provoked or acted under stress.

Employers would be well advised to detail in the dismissal outcome letter the mitigation they considered when deciding on the appropriate sanction, this will help demonstrate that all the relevant circumstances were considered i.e. “In reaching my decision to dismiss you, I took into consideration your length of service and previous unblemished disciplinary record but decided your conduct was so serious as to warrant dismissal.”

Employers should also ensure they act consistently with previous decisions and that the level of sanction imposed is the same as those given to other employees in similar circumstances or for similar offences.

Communicating the decision – the outcome letter
The employee must be informed, without unreasonable delay, of the employer's decision and their right of appeal. The Acas Code states the outcome should be communicated to the employee in writing and should include the following:

• clearly set out the allegation(s) against the employee.
• the findings in relation to each allegation.
• the decision.
• the sanction (if an employee is to be given a warning, the period that any warning is to remain in force should be clearly stated along with the possible consequences of any further misconduct or continuing unsatisfactory performance.)

• the factual basis and reasons for the decision. and
• inform the employee of their right of appeal (including the name of the person to whom the appeal must be submitted and the timescale for appeal).
The level of detail required in an outcome letter will vary depending on the seriousness, complexity and number of allegations. An outcome letter should always be detailed enough to allow the employee to understand how and why the employer came to their decision.

Appeals
Under the Acas Code, an employee must be advised in writing of the right of appeal, when the employer's decision is communicated. Any time-scale for lodging an appeal should also be stated.

The Acas Code provides that so far as is possible, any appeal against, or review of, the dismissal or disciplinary sanction should be dealt with “impartially” by someone not previously involved in the case. Ideally the person conducting the appeal should be more senior than the person responsible for making the decision to dismiss or imposing the disciplinary sanction in the first instance.

It is also good practice for the person hearing the appeal to be outside the reporting line of the person who conducted the disciplinary hearing. This will help avoid allegations that the manager responsible for the appeal was biased, or simply supported their subordinate's decision as a matter of course, rather than considering the matter afresh or properly reviewing the decision.

The manager conducting the appeal should have access to the evidence compiled during the investigation and copies of the notes from the disciplinary meeting. However, they should not discuss the original outcome with the initial decision-maker prior to the appeal meeting, again to avoid allegations of bias or predetermined outcome.

Employees have the same right to be accompanied at a disciplinary appeal as at an initial disciplinary meeting.

The conduct of the appeal meeting is similar to that of the disciplinary hearing but may vary depending on whether the appeal is a review of the hearing decision or a re-hearing of the entire case. Where the appeal hearing is a review of the disciplinary outcome (as will most often be the case), the employee should be given the opportunity to explain their grounds of appeal and why they think the outcome should have been different. The person hearing the appeal will then have the opportunity to ask for clarification on any points made by the employee and ask questions about any of the evidence relevant to the appeal.

Once the appeal hearing has been concluded the employer should write to the employee with the outcome i.e. whether the employee's appeal is upheld (in full or in part) or whether the original disciplinary hearing decision is upheld. As in the case of the disciplinary hearing outcome, the appeal outcome letter should be as detailed as possible and include the reasons for the decision as well as justification for those reasons referring to evidence where possible.