AGENDA FOR CONDUCTING A DISCIPLINARY HEARING
Personnel and preparation for hearing
Decide who should attend. Consider having two employer representatives present: a chair, who has decision-making responsibility, and a second person who can take notes. This might be someone from Human Resources (HR) or an Office Manager, who can also advise the chair on procedural points as they arise. It might also be appropriate for the person who conducted the investigation to attend and present their evidence and findings to the chair.
Ensure that everyone involved, including any witnesses and anyone accompanying the employee under section 10 of the Employment Relations Act 1999, have been notified of the time and location of the hearing and are available to attend. Ensure that the employee has given the names of any witnesses they would like to call to the hearing and that the employee has been informed of any witnesses being called by the employer.
If the hearing will be taking place remotely, ensure that the employee and any companion have access to the technology being used to conduct the hearing (and an internet connection) and that relevant dial in details have been shared with them. Check that they have access to a quiet location from which they attend the hearing remotely.
If the employee is not at work (for example, because they have been suspended), ensure that they have received all correspondence and accompanying documents relating to the hearing, including any evidence relevant to the allegations. If the employee is absent from work, the employer should have considered using a courier to deliver the letter and accompanying documents, rather than relying on the post.
Deal with any requests for special adjustments (such as a reader for a dyslexic employee, or a sign language interpreter for a deaf employee). Consider if anyone involved in the hearing has any disability or accessibility issue that might affect their ability to use video technology (if the hearing will be taking place remotely), and whether any adjustments might be needed as a result.
Postponement or failure to attend
If an employee fails to attend, or seeks a last-minute postponement or adjournment, the chair will need to decide what to do. If unforeseeable circumstances are involved (such as illness or travel difficulties), it is usually appropriate to reschedule the hearing for another date: the length of any delay will depend on the circumstances. If the employee persistently fails to attend, or is unwilling to attend without good reason, and it appears that they may simply be stalling, the chair should consider whether they can hear the evidence and take a decision fairly in the employee’s absence. Where the employee will not be available to attend within a reasonable period of time (such as in cases of stress or other long-term illness), consider other ways of conducting the disciplinary hearing, such as:
by telephone, videoconference or using other remote working technology;
at a location nearer the employee’s home address; or
using written submissions to be considered at a hearing in their absence.
The employee would still have the right to appeal the decision and a full rehearing could be held at that stage.
If the employee’s companion cannot attend, the onus is on the employee to suggest another date. The employer will only have to agree to the new date if it is “reasonable” and not more than five working days after the original hearing date (section 10, Employment Relations Act 1999).
Minutes of hearing
Consider arranging for a notetaker to be present and inform the employee and their representative of the arrangements. Minutes of the hearing do not have to be agreed with the employee, but if the employee disagrees with the minutes taken, they should ideally be allowed to have their objections recorded in writing and attached to the minutes.
At the beginning of the hearing
The chair should first introduce the people present and explain their role in the disciplinary process.
The chair should confirm whether the hearing will be recorded and, if it will be, seek the agreement of those individuals involved. The employee should be reminded not to record the meeting and asked to confirm that they are not doing so.
If the employee is unaccompanied, the chair should remind them of their right to be accompanied.
If the employee is accompanied, the chair might want to verify the identity of the companion to ensure that they are entitled to be present. The chair could also say a few words about the scope of the companion’s role. The companion can address the disciplinary hearing (which includes putting the employee’s case, summing up and responding on their behalf to any view expressed at the hearing, but does not include answering questions on their behalf) and can confer with the employee during the hearing.
The chair should also ensure that the employee has:
read and understood the applicable disciplinary procedure;
understood the purpose of the hearing; and
received copies of any documents that will be referred to during the hearing.
The chair should check if any reasonable adjustments need to be made if either the employee, their companion or any witnesses are disabled.
Any minute or note-taking arrangements should be discussed and confirmed.
The management case
The chair should explain in detail the allegations that have been made against the employee, and the evidence that the employer is relying on in support of those allegations. It is also good practice to remind the employee of the possible outcome (for example, a warning or dismissal). All of this information should have already been provided to the employee in writing, well before the meeting.
The evidence might be a report summarising a lengthy investigation (in which case it would make sense for the investigator to present it and answer questions on the scope of their investigation and the evidence collected), or just the chair setting out details of the allegations and the evidence. It may be necessary or desirable for witnesses to attend to present their case. Alternatively, the employer could rely on written witness statements obtained during the investigation.
The employee’s case
The employee should be given the opportunity to ask questions, present their version of events and produce any evidence in support. They should have a reasonable opportunity to call witnesses, provided that they have given advance notice that they intend to do so. They can also respond to (or challenge) any documentary evidence or witness testimony. If the employee has a full opportunity to present their version of events, ask questions and the employer has carried out as much investigation as is reasonable, the chair does not generally need to let the employee cross-examine witnesses, particularly if it would be likely to cause distress to the witnesses or affect the hearing in any way. However, there is no absolute rule that an employer will never need to allow cross-examination; each case will turn on its facts.
If new evidence comes to light during the hearing, the chair should consider adjourning the hearing to check facts or re-interview witnesses, and then reconvene it to allow the employee a further right to respond.
The employee, who will inevitably be under stress, may be angry, abusive or visibly distressed during the hearing. The chair should be sensitive to this and make sensible use of adjournments to allow the employee to regain their composure.
The employee’s representative might object to the procedure the chair is following, or attempt to prevent the employee answering questions. The representative has no right to answer questions on behalf of the employee, address the hearing contrary to the employee’s express wishes, or act in a way that prevents the employer or any other person making a contribution. The chair should ensure that a note is made in the minutes of any interruptions or objections from the employee’s side, together with the employer’s responses, to ensure that there is an accurate record of the proceedings. This will help when dealing with any subsequent disagreements or points raised on appeal.
Once the employee has presented their case, the chair should summarise the information put forward by both parties. The employee should be asked whether they want to make any additional comments or ask any further questions at this stage.
The employee might have raised issues that require further investigation by the employer. If there is any further investigation, the employee should be given the chance to respond to the findings at a reconvened hearing.
If no further investigation is required, it is good practice to adjourn the hearing to consider the decision, even if the chair has an idea about the sanction they want to impose. This ensures that the matters discussed at the hearing are considered properly and that the employee can see that they have been treated fairly and reasonably. Announcing the decision immediately after the employee has finished speaking would suggest a predetermined outcome.
The length of the adjournment will depend on the complexity of the issues to be considered, and whether further investigation is needed. The employee should be given an indication of how long it is likely to be before the hearing is reconvened or the decision communicated. Any delay at this stage should be no more than is reasonable.
Communicating the decision
Once the chair has reached a decision, the hearing should ideally be reconvened and the decision explained to the employee face to face. The decision should be communicated formally in writing any case (paragraph 18, Acas Code), and the employee should be told of their right of appeal.
The letter confirming the decision should clearly set out:
the allegations against the employee;
the findings in relation to each allegation;
the reasons for the decision; and
the action (if any) that the employer intends to take.
If an employee is to be given a warning, the period that any warning is to remain in force should be stated clearly, along with the possible consequences of any further misconduct or continuing unsatisfactory performance during that time. If there is a possibility that the “live” period of the warning may be extended if the employee’s conduct does not improve sufficiently during the review period, this must be made clear to the employee. The employee should also be advised about how and where the warning will be stored, and whether it will be removed from their personnel file once it has expired. Although employers may, and often do, state in warning letters or in their disciplinary or capability procedure that warnings will be removed from the employee’s record altogether after a certain length of time, this is not required as a matter of law and may not be in the employer’s best interests (see Practice note, Conducting disciplinary and appeal hearings: Should spent warnings be kept on file?).
If the employee is to be dismissed, the letter should set out the date the dismissal will take effect and any other relevant information, such as arrangements for unused holiday entitlement and the return of property belonging to the employer (see Standard document, Letter to confirm summary dismissal for gross misconduct).
The letter should also explain how to appeal against the decision. The employee should be told the name of the person to whom the appeal must be submitted, to specify their grounds of appeal in writing and the timescale within which an appeal should be submitted.