How to decide the outcome of a disciplinary Hearing

The outcome is the most impactful part of the disciplinary process for all parties. However, it is only possible for the disciplining manager to arrive at a fair decision if the following steps, as outlined in our previous 4 blog articles, have been carried out fairly and professionally in the preceding days or weeks according to ACAS (www.acas.org.uk):

1. Decide whether the unacceptable behaviour is due to performance or conduct.
2. Consider suspension.
3. Appoint an investigator and identify who will hold any potential disciplinary hearing.
4. Investigate the matters of concern.
5. Decide whether disciplinary action is appropriate based on the investigation.
6. Issue notice of disciplinary hearing letter.
7. Hold the disciplinary hearing. 

All of these steps are covered in detail in the 186hr ‘Practical Guide to Disciplinary Action’. The guide is a comprehensive document that includes all you will need in order to carry out disciplinary action fairly and professionally. It contains CIPD approved model policy documents, detailed explanations of each stage of the disciplinary process, CIPD approved model letters covering every eventuality of each stage, along with 2 hours of telephone-based consultation with a highly experienced, highly CIPD qualified senior HR professional. The guide is compliant with the ACAS Code of Practice and costs £249 plus vat. Click here for further details

As explained last week when we covered how to manage the disciplinary hearing, once the hearing has closed and any follow up actions have taken place e.g. reinterviewing any witnesses whose evidence was challenged by the employee, the disciplining manager should then weigh up all of the available evidence and sleep on it before making a decision.

In addition to cogitating on the evidence gained during the investigation and hearing, the disciplining manager should also consider whether there are any live and / or spent warnings on the employee’s file along with any mitigation the employee has explained, before deciding the outcome. They should also ensure any outcomes are consistent with previous disciplinary decisions made by the company.

We’ll look at these areas in a little more detail now.

Live warnings

According to the CIPD (www.cipd.co.uk), and normal best practice, if the employee has a live warning on file for a similar issue this should be taken into account by the disciplining manager when making their decision. It would normally result in a more severe warning being given e.g. if there is already a written warning on file they may escalate this to a final written warning. 

This escalation process can mean that sometimes employees are fairly dismissed for relatively minor acts such as lateness or a failure to follow a process which, although some may view as harsh, can be justified due to the accumulation of unacceptable behaviour. I suppose it is similar to receiving 2 yellow cards in a football match and being sent off, the same outcome as for a dangerous tackle.

Please be mindful, however, that if the escalation process leads to dismissal for an act that is not similar to previous warnings that are on file you may wish to reconsider. It may be perfectly reasonable to dismiss under these circumstances but you should take advice before doing so.

‘Spent’ Warnings

Where there are already warnings on an employee’s file, when considering the outcome of a disciplinary hearing the disciplining manager must find out whether those warnings are live, as explained above, or ‘spent’ i.e. they are historical and therefore should be disregarded for disciplinary purposes. 

The organisation’s disciplinary policy will clarify the timescales for when warnings become spent. Often the following time limits apply:

• Verbal warning – 3  months
• Written warning – 6 months
• Final written warning – 12 months.

Although spent warnings may not generally be taken into account by the disciplining manager when making a decision, it may be possible to do so in certain circumstances e.g. if the employee repeats the behaviour immediately after a warning becomes spent, or if there are several spent warnings on file already for the same type of behaviour the individual is being disciplined for on this occasion – in other words there is already a proven pattern of such behaviour. 

If you wish to use spent warnings when deciding on a disciplinary outcome please take advice before doing so.

Also, please be mindful of data protection and GDPR rules if warnings that became spent some time ago are still on file as the legislation contains strict guidelines about how long such information may be kept on file.

This may seem contradictory in some ways, as taking mitigation and an employee’s past record into account may lead to disciplinary outcomes seeming to be inconsistent with previous company decisions, but if the inconsistency is due to such a reason then it would normally be deemed to be reasonable by the judge at tribunal.

Finally, the disciplining manager should consider any other relevant factors that may influence the disciplinary decision such as mitigation, the employee’s past record, and consistency. 

Mitigation

This is where other factors such as issues outside the workplace may have affected how the employee behaved whilst in work. The disciplining manager should take this into account when making their decision e.g. if an individual is getting divorced or is recently bereaved they may have acted out of character. 

It is important to remember that the purpose of disciplinary action is to change the behaviour of the employee, therefore where such mitigation exists, the employment relationship in these circumstances may be better served by supporting the individual through this difficult time rather than giving them warnings.

Past Record

When deciding the outcome of a disciplinary hearing the manager should also consider the individual’s previous track record.

In the same way as an employee with previous warnings may receive a more severe outcome, a long-serving employee’s previously unblemished record of good behaviour should also be taken into account, and leniency considered.

Consistency 

Whilst being mindful of the above caveat that disciplinary outcomes may be influenced by an employee’s previous record, or mitigation, it is very important generally to ensure that disciplinary decisions are consistent with previous outcomes so as to avoid accusations of bias, discrimination, or unfairly targeting individuals. 

HR will be able to advise of any similar previous cases and what outcomes may therefore be appropriate for the disciplining manager to choose from. 

The Outcome

Once the above areas have been considered the main options for the disciplining manager to consider with regards to what outcome to choose are as follows:

• No further action.
• Training.
• Informal warning.
• Verbal warning for a first minor offence (if your policy includes a verbal warning option).
• Written warning for a more serious offence or where a verbal warning is live on file. Where previous informal action has been taken regarding the issue it may be possible to move straight to written warning i.e. to miss out the verbal warning stage.
• Final written warning for serious misconduct, or for gross misconduct where there is mitigation, or where there is a relevant live written warning on file for similar issues.
• Dismissal with notice for serious misconduct if warranted, or for gross misconduct where there is mitigation, or where there is a live final written warning on file for similar issues.
• Summary dismissal without notice pay for gross misconduct.
• An alternative sanction to summary dismissal for gross misconduct if appropriate e.g. demotion or a period of unpaid suspension.

Next week we will look at confirming the outcome in writing to the employee and then in our final post on the subject of disciplinary action we will look at the appeals process.

We hope this article has been useful. If you would like to discuss disciplinary action or any other HR issues please contact us.