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Conflict in the workplace has many negative effects on businesses of all sizes. Disciplinaries and grievances cause low workplace morale, lengthy procedures, stress, and account for many days off in a workplace (Tribunal Annual Statistics, 2019).
Lack of managerial support and training in taking formal action can lead to cases going to employment tribunals, which have been on the rise, possibly because employees are becoming more aware of their rights (Saundry et al., 2016). Employers should be aware of how to carry out the disciplinary process. This article covers how to conduct a disciplinary hearing, what happens when there is a failure to attend a hearing, navigating disciplinary action through sick leave, and the disciplinary appeals process.
A disciplinary is a formal procedure carried out by employers if their employees have either conducted 1. Improper or unacceptable behaviour (gross misconduct) or 2. Failure to perform (capability) (Acas guidelines).
In the latter case, many organisations have other informal or formal procedures in place to address performance-related issues.
Instances of gross misconduct may include:
- Refusing to do work (‘insubordination’).
- Being absent without permission (‘AWOL’).
Before following the guidelines to conduct a disciplinary hearing, employers should ensure they have familiarised themselves with the Acas guidelines. If an employee has raised a concern about the workplace that they are unable to resolve informally, they can carry out a grievance. You can read more about grievances on the CIPD Factsheet.
How to conduct a disciplinary hearing
As an employer, it is vital to know the necessary information and procedures carried out for the disciplinary. According to UK law, there are minimum steps that must be actioned in a disciplinary hearing – these are known as the ‘statutory minimum procedures’. Your procedure as an employer must include these minimum procedures: a letter highlighting the reasons for considering formal action, a formal meeting, a decision, and an opportunity to appeal.
Before the hearing
When an issue becomes apparent, the employer should first try to resolve the issue informally.
Examples of this include:
- Training, coaching or advice.
- Providing constructive criticism.
- Milestones for improvement.
- Using an independent mediator, if required.
- Setting out clear expectations, if not communicated already.
If this is not possible and the issue is serious, the employer can decide to take formal action. This is in the form of a disciplinary and requires some planning and organisation beforehand. In all cases, employers should act promptly, fairly and consistently.
The first step is to establish the facts relating to the issue. A thorough investigation must be conducted to gather reports (such as performance reports), recordings, witness accounts etc. Some cases may require an investigatory or fact-finding meeting. In very few cases, suspension may be required. Employers should read the Acas guidance on suspension.
After the facts have been gathered, employers must inform the employee of the disciplinary in writing.
The letter should include:
- Information and nature of the complaint.
- Potential consequences.
- The employee’s right to be accompanied.
Employees should be given sufficient time to prepare for the disciplinary. A copy of the complaint and evidence should be given to the employee in advance of the hearing.
During the hearing
Disciplinary meetings can be stressful and tense for all parties involved. Having a structured outline prepared in advance may help keep the hearing focused. Ensure all the facts are present such as witness accounts, reports and records.
The people at the meeting will vary depending on the size of the company.
There is usually:
- Someone from the HR department.
- A manager.
- Someone to take notes.
- A companion if the employee has requested one.
- Witnesses, if there are any.
Where possible, appoint an unbiased party to record the meeting minutes and act as a witness.
Evidence is important and should be handled with caution. Witness accounts must be checked for credibility and motives. The employee may offer counter-explanations during the meeting. In some cases, these can be investigated beforehand by the employer.
It is important to remember that the meeting is to establish facts and not to interrogate or accuse the employee.
The employee must be given enough time to present their case. This includes time to respond to allegations, present their own evidence and call witnesses. The employee should be able to present their case without interruption. Any points can be noted throughout to be highlighted after the employee has had time to present their case.
The outcomes of the hearing include:
- Adjourned to investigate further.
- Further action to be taken.
- Timescale to improve performance with expectations clearly outlined.
- A first written warning which outlines the timeframe and expectations, and the consequences of not adhering to the employer’s expectations.
- A final written warning if the issue is serious or previous action has been unsatisfactory.
- In very rare cases, serious gross misconduct may result in dismissal.
After the hearing
Once the meeting has ended, the next steps should be formalised and communicated in writing. A reasonable timeline should be given to the employee about any decisions that will be made.
When deciding whether a disciplinary penalty is appropriate and how it should be conducted, here are some points to consider:
- Whether the rules of the organisation indicate what the penalty will be (a specified penalty for particular misconduct).
- Compare with penalties given in similar cases in the past.
- The employee’s record (including current warnings), general work record, work experience, position and length of service.
- Any special circumstances which might make it appropriate to adjust the severity of the penalty.
- Whether the proposed penalty is reasonable given all the circumstances.
- Discuss if training or support is necessary to move forward.
Although past cases can help decide how to move forward, each case is different and should be treated as an individual case.
The details and outcomes of the disciplinary procedure must remain confidential. However, employers may choose to discuss the disciplinary privately with any employees that are aware of the situation. This has many benefits such as mitigating negative feelings, avoiding gossip, managing bullying and keeping morale high at the workplace.
Written records are essential for employers and should comply with the Data Protection Act – being confidential and stored for the time allowed.
The Acas Code of Practice is crucial for employers. Failure to follow the code may lead to adjustments in the award by up to 25% for non-compliance.
Failure to attend
In some cases, an employee may not arrive for the scheduled meeting. An effort should be made to reschedule the meeting with adequate time to prepare, along with the date, time and place. Where possible, delays should be avoided.
In communication with the employee, highlight the importance of attendance at the hearing and the possibility of a decision being taken in their absence.
There may be occasions when an employee is repeatedly unable or unwilling to attend a meeting. This may be for various reasons, including an illness (see below for guidance for disciplinary action on sick leave) or hesitance in dealing with the issue. Employers must carefully evaluate the situation before proceeding.
Considerations may include:
- Any rules the organisation has for dealing with failure to attend.
- Disciplinary meetings.
- The seriousness of the disciplinary issue under consideration.
- The employee’s disciplinary record (including current warnings), general work record, work experience, position and length of service.
- Medical opinion on whether the employee is fit to attend the meeting.
- How similar cases in the past have been dealt with (Gov.uk).
When the employee continually misses the hearings, the employer may conclude that a decision will need to be made on the facts available. The employee should be informed of this decision.
Disciplinary action while on sick leave
Where an employee is absent due to a short-term illness, the most appropriate course of action is likely to be for the employer to postpone the hearing until the employee is well enough to attend.
In cases of long-term absence, the process should continue with the involvement of the employee as much as possible. This could mean allowing the employee to present their case in writing or via a representative.
Use occupational health services to discover if the employee:
- Can understand the allegation.
- Can respond.
- Has the ability to provide their case in writing.
- Can instruct a representative to assist them.
- Can inform you of any reasonable adjustments that would help them attend.
These steps are an indication that the needs of the employee have been considered and that attempts to include the employee in the process have been made.
If the employee has had a prolonged absence due to stress, a meeting may worsen their situation. In this case, it is best to proceed with the hearing in their absence.
If there is no evidence of sickness and the employee is avoiding the hearing, examples of all missed meetings and attempts to reschedule should be documented. Communication to the employee must also clearly state the disciplinary appeals procedure.
Disciplinary appeals procedure
According to UK law, employees have the right to appeal disciplinary decisions if they feel that the outcome is wrong or unjust (Employment Act, 2008). If an employer does not give the opportunity to appeal, this may be used against them if the case goes to an employment tribunal. Other grounds for appeal include failure to comply with the disciplinary process or there is new evidence.
Employers must make the appeal option known to the employee. Employees should be given the necessary information required to appeal a decision. This information should be included in a staff handbook on grievances and disciplinary procedures.
The grounds for an appeal are put forward in writing. The appeal takes place as a hearing. Once their request is received, the appeal hearing date, time and venue must be set. As with other procedures, this should be carried out promptly, with the employee’s rights in mind. Employees have the right to be accompanied by a ‘companion’, who can be another colleague or member of the trade union.
Parties that were heavily involved in the case may have a biased view and should not be involved in the appeals process. The case should also now be handled by someone more senior than the previous handler. In some cases, a third party may be required if the business is small.
After the case has been presented at the hearing, the employer must decide if:
- The original outcome was fair.
- They need to change the original outcome.
- A new investigation is needed.
If the hearing requires further investigation, it must follow the same steps and guidelines as before. Witnesses and reports may have to be revisited to conclude the disciplinary.
Although policies and procedures are in place and employers may try their best at maintaining workplace harmony, issues may arise. These issues can be raised by the employer if they feel that the employee is not following procedures or there is some evidence of misconduct.
It is preferable to resolve matters informally if possible, to avoid lengthy and stressful disciplinary procedures. However, where matters require formal action, the employer must follow the necessary steps to conduct a disciplinary hearing and decision.
If an employee would like to formally raise an issue, this is called a grievance. Both processes must be documented and carried out according to the Acas guidelines and UK law.
The first thing employers must do is carry out an investigation to gather the facts for the case. At the same time, the employee must be made aware of the formal action in writing.
A formal hearing is carried out where the case is presented with the gathered reports and witness accounts, where applicable.
The decision is communicated to the employee in writing and treated confidentially.
If an employee is unable to attend the hearing due to sickness, a full evaluation must be made to assess their needs to be able to proceed with the disciplinary. If an employee is unwilling to attend or has missed the meeting(s), the employer can find out if there is an issue and if a warning is needed.
By law, employees are entitled to appeal the decision if they felt the procedure was conducted unfairly or the outcome was unjust. Employers must proceed with the necessary steps to ensure the appeals procedure is followed.
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