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Ask Employment Law |
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Remember: There is no substitute for legal advice on the actual situation
you find yourself in. The information posted on this site is for general
information only, is based on |
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Question: |
How should a
disciplinary hearing be conducted fairly? |
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Answer: |
Much
has been written on this topic and I don’t propose to replicate for example
the guidance given at www.acas.org.uk.
This note merely recaps the main points to be covered in order to ensure that
a disciplinary hearing is conducted fairly. However it’s important for employers
to obtain specific advice on how to do this in practice. 1.
First and foremost it’s vitally important for the employer not
to reach any hasty decisions. The employer should only decide once an
investigation and disciplinary hearing have both taken place. Human nature
being what it is, employers often think they know what they are likely to
decide before the hearing takes place. If an employer prejudges the outcome
of the disciplinary process, and is actually
found out, that may render the dismissal at least procedurally unfair. 2.
The employer should carry out a reasonable investigation into
the matters alleged. This will very much depend on the circumstances but as a
general rule the more serious the potential sanction, the more thorough the
investigation should be. 3.
The employer should notify the employee in writing of: ·
The disciplinary charge (ie unauthorised absence, theft etc),
giving sufficient detail to enable the employee to understand exactly what
s/he is being accused of. ·
The potential sanction (ie first written warning, summary
dismissal for gross misconduct etc) ·
When and where the disciplinary hearing will take place. ·
The right to be accompanied by a colleague or a trade union
representative ·
If any documents are going to be referred to at the disciplinary
hearing, copies should be forwarded to the employee at the same time 4.
Sufficient notice should be given to the employee to enable
him/her to prepare for the hearing. The more serious the allegation, or the
more complex the issue is (for example if it entails analysis of a number of
documents), the more notice should be given. 5.
Ideally the investigating manager should be different from the
adjudicating manager. 6.
Although there is no prescribed procedure for the disciplinary
hearing itself, I’d generally recommend that: ·
The investigating matter set out the case for the prosecution
(for want of a better expression) ·
The employee / representative responds to the allegations made. ·
The adjudicating manager asks any questions s/he may have of the
parties present ·
If the adjudicating manager thinks that further investigation is
necessary, the meeting should be adjourned in order for that to take place. ·
The adjudicating manager should ask both sides if they have any
further comments they wish to make before a decision is reached. 7.
Although the Adjudicating Manager can make his/her decision
there and then, I’d generally recommend simply informing the employee in
writing afterwards 8.
The letter notifying the employee of the decision should: ·
Notify the employee of the main findings of fact, giving the
employee sufficient detail to enable him/her to understand the decision. ·
Either notify the employee of the disciplinary sanction being
imposed, or notify the employee that no sanction will be imposed (as
appropriate). ·
Inform the employee of his/her right to appeal. 9.
If the employee appeals, if at all possible a different or more
senior manager should consider the appeal. A further hearing should take
place along the same lines as the original disciplinary hearing. Especially
if the employee has criticised the investigation or procedure of the original
disciplinary hearing, the employer would be wise to have a complete rehearing
of the original hearing. 10.
After the appeal hearing the employee should be notified in
writing giving sufficient detail for him/her to understand the decision
reached. The
potential sanctions of course range from: ·
Informal written warning ·
First Written Warning ·
Second Written Warning ·
Final Warning ·
Dismissal on notice following previous warning(s) or ·
Summary dismissal for gross misconduct. Employers
can jump stages, and go straight to a more serious sanction, depending on the
seriousness of the offence. It’s
worth pointing out that even if the employee does not like the decision
reached, if they feel that they have been treated fairly and reasonably, they
are much less likely to bring a claim in the Employment Tribunal. To some
extent you could say that the lesson is to ‘do as you would be done by’. See
also our page on the right to be
accompanied Last
reviewed: July 2010 |
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Employment
Solicitor Reculver Solicitors Tel
0207 324 6271 Regulated
by the Solicitors Regulation Authority ©
Reculver Solicitors. 2005- |
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