In this article we consider how the disciplining manager should approach the disciplinary hearing, from giving the employee written notice of the hearing through to managing the meeting in a fair and professional way in line with the ACAS Code of Practice.
Once the disciplining manager has examined the evidence and concluded that a hearing needs to take place, and which procedure is most relevant as explained in our previous article, they should then confirm details in writing to the individual.
Please see the 186hr ‘Practical Guide to Disciplinary Action’ for a copy of the CIPD model letter informing an employee of a disciplinary hearing.
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
Practical Guide to Disciplinary Action
Our full Guide includes:
- Comprehensive Guidance for each step
- Template letters for every eventuality
- Letters and policy document approved by CIPD
- Fully compliant with ACAS Code of Practice
- 2 Hours of Telephone Support
The ‘Notice of Disciplinary Hearing’ Letter
Some organisations ‘invite’ employees to a disciplinary hearing whereas at 186hr we prefer to give the employee ‘notice’ that a hearing will take place and inform them that they must attend.
Inviting them just seems a little weak to me and individuals can, of course, decline an invitation! If an individual has broken company rules or has unacceptable performance then we feel they should be ‘required’ to attend the hearing.
There is no point dancing around the subject, the individual needs to understand the gravity of their situation and change their behaviour or be dismissed from the company and we feel that the language used needs to reflect that.
The company disciplinary policy will specify what timeframe the employee needs to be given from receiving their notice of hearing letter prior to the hearing to allow them sufficient time to prepare for the hearing. The minimum is normally 2 working days and if your policy doesn’t specify the timescale or you do not have a policy we would recommend adopting this timeframe.
CIPD approved model disciplinary policies for companies to adopt are included in the above 186hr guide if your organisation either doesn’t have one or you wish to update a current document.
According to ACAS (see www.acas.org.uk), the disciplining manager should confirm the following details in the notice of hearing letter:
- Which disciplinary policy, or section of the policy, is being followed i.e. conduct, performance or gross misconduct.
- The specific allegations.
- The date, time and venue of the hearing.
- Who will be present. This normally includes the individual being disciplined, the disciplining manager and a note taker.
- The right to Representation. Please see below for further details.
- What documents are enclosed. This should include all evidence documents that will be referred to at the hearing, including witness statements. It is best practice to also enclose the company’s disciplinary policy.
Please see the above 186hr guide for the CIPD approved notice of hearing letter to use. If you are not yet ready to purchase the full guide, for a free summary of the process to follow when taking disciplinary action please see 10 Steps of Taking Disciplinary Action
Right to be accompanied
At the hearing the individual has a statutory right to be accompanied if they wish, but there is no requirement for them to be accompanied if that is their choice.
Unless your policy states otherwise (not recommended) representation should be limited to the statutory minimum requirement i.e. the employee being able to choose either a work colleague or a union Representative if they are a member of a union.
They should be allowed to bring a Trade Union Representative even if the organisation does not recognise the union concerned i.e. the employee can bring a Representative from whichever union they are a member of.
As explained in previous articles it would be highly unusual to allow anybody other than the above to represent an employee at a disciplinary hearing, especially not their solicitor unless this is specifically allowed in the company policy.
There is one notable exception which, according to the CIPD (see www.cipd.co.uk) is that ‘employees of public sector bodies who are involved in disciplinary proceedings which may result in the termination of their employment, and also result in them being unable to work in their chosen career/sector, are permitted to be represented by legal representatives during any internal disciplinary proceedings because their contract specifically permits this.’
Although this is the CIPD’s official advice, please refer to our previous article ‘Pitfalls to avoid when taking disciplinary action’ where the case of R (on the application of G) v Governors of X school cast doubt on whether this is always the case, as the Tribunal found that R, a music teacher, was not entitled to legal representation at the disciplinary hearing.
If an individual wishes to bring their solicitor into the hearing please take advice from us at 186hr, your legal adviser or another trusted source.
The Disciplinary Hearing
The disciplining manager should chair the hearing and there will normally be 3 other individuals present: a note taker; the employee being disciplined; and their Representative if they have chosen to bring one.
There are three distinct parts to the hearing: the introduction; the main body of the hearing; and the summary and close and we will look at these in more detail.
Introduction
In the introduction the disciplining manager should explain the following:
- Which policy the hearing is being held under. This will be the disciplinary procedure for conduct, the disciplinary procedure for poor performance, or the gross misconduct procedure.
- Introduce all present and their roles in the hearing.
- Specific clarification of the role of the Representative if the employee has brought one – they may take notes, make points on behalf of the employee and advise them but may not answer questions directly put to the employee i.e. the employee should personally answer all questions asked of them.
- The notetaker (usually a HR representative) will take formal notes of the hearing and advise on process where needed. After the hearing the notes will be typed up and the employee will be asked to either confirm they are an accurate record of the hearing or highlight any areas they disagree with or that have been missed. See the above 186hr guide for the CIPD recommended structure for these notes.
- What will happen today i.e. that the disciplining manager will ask questions regarding each allegation so they can understand the issues fully, and allow the individual to explain things from their viewpoint including any mitigation or reasons why they acted as they did. The manager will then consider all of this before making a decision.
- It is unlikely that a decision will be made today as the manager will need to consider all of the evidence.
- When a decision has been made it will be confirmed in writing to the individual.
- The specific allegations that will be discussed today. These are normally read from the notice of hearing letter
The main body of the hearing:
The disciplining manager should have previously prepared questions for each allegation based on the evidence, and anything they need to clarify in order to make a decision.
Whereas the first section of the hearing was about setting the scene and explaining what will happen, in this section the employee should be doing most of the talking as it is their opportunity to explain their actions and challenge anything they do not agree with.
The format of this section is as follows:
- The disciplining manager should ask their pre-prepared questions regarding each allegation and then any follow up questions depending on the answers they receive, so they can fully understand the employee’s explanations and defence.
- The employee should be allowed to make any comments or explanations they feel are relevant, and submit any pertinent evidence for the disciplining manager to consider.
- The disciplining manager and / or the employee may call and interview witnesses if they choose to.
- Towards the end of this section the disciplining manager should ask the employee if there is anything else they wish to add before the hearing closes, or if there are any mitigating factors they would like considered such as an issue outside of work that affected their judgement, or if the employee feels they have not been treated consistently e.g. if another employee has done something similar but has not been disciplined.
Summary and close
In this section, as with the introduction, the disciplining manager should be doing most of the talking and should explain the following:
- The hearing is now closed.
- Summarise any further action to be taken e.g. anything that needs further investigation.
- They will now consider all of the evidence and make a decision.
- The employee will receive a copy of the notes taken today and be asked to confirm they are an accurate record of the meeting, or to make any appropriate alterations.
- Give an expected timescale by which a decision will be made (you should always sleep on it before making a decision even if the evidence is clear).
- The outcome will be confirmed in writing, along with how to appeal against the decision if the individual doesn’t agree with it.
- Ask for any final comments.
The hearing should then be adjourned and the notes typed up asap with a copy sent to the individual for them to confirm either that they are an accurate record of the hearing or any specific areas they do not agree with.
The disciplining manager should then carry out any agreed actions, sleep on the evidence and then make a decision. We will cover the decision-making process in our next article.
We hope this article has been useful. If you would like to discuss disciplinary action, or any other HR issues, further please contact us