Being invited to a disciplinary hearing can be distressing. There is a risk that the hearing could result in dismissal, a formal warning that your performance or conduct must improve, or some other kind of contractual sanction being taken.
Being forewarned as to what you can expect may make the hearing a little less stressful. In all cases where a formal disciplinary hearing is to take place, your employer must follow the Acas code of practice as a minimum. You should expect that there has been a thorough investigation and only after that investigation has taken place should you be invited to a disciplinary hearing. Your invitation to the hearing should be in writing, you should be given enough time to organise your defence (at least 48 hours), you should be told what you are accused of and shown any evidence against you and you should be told that you can be accompanied at the hearing by a colleague or a trade union representative.
If you have less than two years’ continuous service with your employer, your employer may not necessarily adhere to the Acas code of practice. However, if you have at least two years’ continuous service any dismissal could be unfair unless your employer has followed the principles of the Acas code of practice before terminating your employment.
Your employer should have a written disciplinary procedure in place which explains how disciplinary matters will be dealt with. The disciplinary procedure can usually be found in your contract of employment or the Company/Staff Handbook. The following is a summary of a standard disciplinary process. Your employer’s disciplinary procedure may vary slightly so it is advisable to obtain a copy of your employer’s procedure.
Before deciding to follow a formal disciplinary procedure your employer should have undertaken a reasonable investigation with a view to establishing the facts surrounding the allegations against you. An investigation will normally include interviewing witnesses and obtaining their statements and reviewing other evidence such as documents, photographs or CCTV footage.
In some cases, especially those involving more serious allegations, your employer may decide to suspend you whilst it carries out an investigation. Any period of suspension should be on full pay and for as short a time as possible. Your employer will usually confirm your suspension to you in writing and that you must not attend the workplace or contact customers or colleagues without your employer’s permission.
Where your employer decides to start formal disciplinary proceedings, it should write to you to set out the allegations against you clearly. The letter should also indicate the possible outcome if the disciplinary allegations are upheld against you. Any evidence that your employer proposes to rely on at the disciplinary hearing should also be included, although they may choose not to reveal the identity of witnesses.
You will be invited to a disciplinary hearing and should be given sufficient time to prepare for it. Less than 48 hours is unlikely to be reasonable notice.
You have the right to be accompanied to the disciplinary hearing by a colleague or trade union representative. This right is set out in sections 10-15 ERelA 1999. If your employer fails to or threatens to fail to comply with this right you will be entitled to bring a tribunal claim. Similarly, if you are subjected to detrimental treatment or dismissed for seeking to exercise this right you will have grounds for a claim.
There is no right to be accompanied to an investigation meeting.
There is no right to be accompanied by a friend or member of your family.
There is no general right to be accompanied by a qualified legal representative. However, it is important to be aware that certain employees, such as doctors, may have a contractual right to legal representation.
The right to be accompanied applies when you reasonably request to be accompanied.
It is not necessary for you to belong to a trade union in order to be accompanied by a trade union representative. Nor is it necessary for your employer to recognise a trade union. We are able to arrange for you to be accompanied by a trade union representative. Many of our clients have benefitted from this service. Our clients have found that being accompanied by an experienced trade union representative provides them with moral support and the confidence to present their case in the most effective way thereby maximising the chances of a positive outcome. The trade union representatives we work with are experienced and well versed in employment rights
The right support can make a big difference to the outcome. Call us if this service would be useful to you. Representation can be arranged for a fixed fee.
Where your chosen companion is not available for the disciplinary hearing you have the right to propose an alternative time which is no more than 5 working days later. If that time is reasonable the employer must rearrange the meeting for then.
Your companion is allowed to make representations to the disciplinary panel including presenting your case, questioning witnesses and summing up. There is no right for your companion to answer questions on your behalf.
A worker can bring a tribunal claim if their employer fails to or threatens to fail to comply with the right to be accompanied. The claim must be brought within 3 months of the failure or threat and workers may be awarded up to 2 weeks’ pay if a claim is upheld.
If you are subject to a Police investigation or criminal charge or conviction, this does not usually automatically warrant disciplinary action by your employer if the matter has no direct bearing on your suitability for the job or relationship with colleagues, your employer or customers.
Where the criminal bearing on your employment, your employer may wish to investigate the matter and hold a disciplinary. In these circumstances, you should seek advice from the solicitor representing you in the criminal matter before making any statement to your employer as any such statement could prejudice your trial.
An employer may decide to investigate the matter and start disciplinary proceedings before the outcome of the criminal proceedings.
The Acas code of practice states that an employer should carry out its investigation and should not rely on the Police investigation. An employer may, however, rely on information supplied by the police when conducting their own disciplinary proceedings.
An employer is not bound by the outcome of a criminal trial or police investigation. In certain circumstances, an employer may decide to continue its own investigation after a matter has been dropped by the Police or CPS or an acquittal at trial.
At Alpha Law we provide expert advice at all stages of the disciplinary process. We advise you on the allegations, the evidence, preparing your case and obtaining evidence to support your case. We can provide you with invaluable support and advice “behind the scenes”. We also arrange representation for you if you wish. Please call us on: 0207 408 9427 or 01159 8862111 for further information and to find out how we can help you if you are called to a disciplinary hearing by your employer.
At the hearing you should be given the opportunity to present your version of events, including any evidence and witnesses. In addition to the person chairing the disciplinary hearing, there may be other members of a disciplinary panel who will take part in the decision making process. Depending on the size of your employer’s organisation a member of HR may attend along with witnesses for the employer. Wherever possible the decision should be made by someone other than the person who investigated the disciplinary allegations. This is not always possible in smaller organisations.
The length of the hearing will depend on the nature of the allegations and the amount of evidence that is presented. Usually, there will be an adjournment before a decision is made. You may be informed of the decision on the day of the disciplinary hearing or later by letter. You should also be informed of your right to appeal if any disciplinary sanction is imposed.
If an employer decides to dismiss it must be able to show that dismissal was “within the range of reasonable responses” open to it in the circumstances. If the employer is unable to do this and you have more than 2 years’ continuous service you will have grounds for an unfair dismissal claim. The type of misconduct that will warrant dismissal for a first offence will depend on the nature of your work and your employer’s organisation but typically conduct involving physical violence, being under the influence of illegal substances, theft, fraud, serious negligence and breach of health and safety regulations may all result in dismissal.
In cases involving less serious misconduct, the Acas code of practice recommends that employees should usually be given at least one chance to improve their conduct or performance before a final written warning is issued. If final written warnings are used oppressively for relatively minor misconduct this could give rise to a claim for constructive dismissal.
Your employer may take into account any live/unexpired warnings on your personnel file when deciding the appropriate disciplinary sanction.
The period for which a warning is to remain live must be confirmed by your employer. Usual time periods for a written warning are 6 months and 12 months for a final written warning but there are no hard and fast rules and it is possible that a warning may remain live indefinitely in appropriate cases.
Before dismissing an employer should consider whether any other disciplinary sanction would be appropriate, such as demotion, redeployment or a final written warning.
Your employer should write to you to confirm whether any of the disciplinary allegations against you have been upheld and, if so, the disciplinary sanction imposed. You should be given the right to appeal against a disciplinary sanction. It is important that you appeal against any disciplinary action that you do not agree with or consider unfounded and that you do so within the applicable time limit. We can review the disciplinary decision and draft a letter of appeal for you.
If you are dissatisfied with a disciplinary sanction imposed by your employer please contact us in the strictest confidence to discuss. One of our highly experienced employment solicitors will advise you on the appropriate course of action to challenge a disciplinary sanction and what rights you may have to pursue a tribunal claim.