Our employer s guide to disciplinary hearings and appeals (fair procedure)

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1 Our employer s guide to disciplinary hearings and appeals (fair procedure) If an employee has behaved badly or their performance is not acceptable, you have every right to protect your business and your workforce from what s happening. The good news is that the law will help you to do this but you must ensure that you follow the right steps and process to avoid undermining your intentions. As an employer, you re legally obliged to have clear and fair disciplinary and dismissal procedures in place so that unacceptable behaviour by employees is efficiently handled, stopped and everyone affected by what has happened is treated with respect. Generally, the focus of disciplinary action is to get the employee to improve and so the emphasis of the interactions from the start should be to gather and present evidence of where the employee is not meeting the desired standards and clearly showing what is required. There are quite a few rules about how these processes should be handled and some unavoidable components that you have to include in your procedures which we ll explain. Generally, you should expect all instances of bad conduct to first undergo a disciplinary process and then, if necessary, lead to a dismissal action. In cases where the poor conduct is so serious that there is a breakdown of your relationship with the employee, then you would expect the disciplinary procedure to lead to a dismissal action immediately after the disciplinary procedure. Such situations might include where an employee has stolen something, been dishonest in another way or has been grossly careless or grossly negligent. If you decide to take disciplinary action against an employee, the golden rule is that a fair procedure should always be followed. The ACAS Code of Practice on Disciplinary and Grievance Procedures sets out what a fair disciplinary procedure should include and what warnings system should be followed. The Code of Practice is not law. Its importance lies in it being admissible as evidence before an employment tribunal if an employee subsequently complains about how you ve treated them - and, in practice, tribunals expect its provisions to be closely followed by employers. A failure to follow a procedure prescribed in the Code can make an otherwise fair dismissal unfair. In addition, if either party has unreasonably failed to comply with any of the provisions of the Code, the tribunal has the discretion to adjust any compensatory award by up to 25% (depending on which party was at fault). An employee can generally make a claim for unfair dismissal if they have been employed for two years or more. 1

2 Use the warnings steps The ACAS Code recommends a fair warnings procedure to address disciplinary concerned. There are three formal, consecutive stages to this procedure: 1. written warning 2. final written warning 3. dismissal Each of these steps should be activated in the order set out above and to avoid an employee successfully complaining of unfair dismissal to an employment tribunal. Even prior to implementing the formal stages, employers should ideally first consider informal coaching or counselling of the employee. In exceptional gross miss conduct situations Employers may summarily dismiss employees after the disciplinary hearing. Always implement a fair disciplinary process To avoid risk of a successful employee complaint, this is key. So how do you achieve it? The ACAS Code of Practice on Disciplinary and Grievance Procedures sets out the following general principles for dealing with any misconduct or poor performance issues: 1. Issues should be raised and dealt with promptly and you should not unreasonably delay meetings and decisions 2. You should act consistently in how you treat misconduct and how you handle the procedure 3. Any necessary investigations should be carried out to establish the facts 4. Employees should be told about your concerns and be given opportunity to respond before any decisions are made 5. Employees may be accompanied by someone else of their choice at any formal disciplinary hearing 6. Employees should be allowed to appeal against any formal decision made These must be respected for the process to be considered robust and defensible. 2

3 The key stages to ensure a fair process In compliance with the ACAS Code of Practice, a fair disciplinary procedure will go through the following stages: 1. Any and all allegations must be thoroughly and properly investigated to establish the facts Where a potential disciplinary matter arises, the officer or senior member of your personnel to whom you assign the role of investigator must first establish the facts promptly and without unreasonable delay, before recollections fade. (If you do not have someone suitable, we can always assist you.) Any witnesses? If there are any individuals whose experiences of the conduct causing you concern are relevant, they can be asked to provide you with statements (called witness statements ) to assist the disciplinary process. Where witness statements are to be taken, the investigating officer should arrange individual meetings with each of the potential witnesses to obtain an account (in their own words) of the incident or events. Properly taking statements Once these statements have been typed up, the witness should be asked to check, sign and date their statement. They should be given the opportunity to make any necessary amendments to ensure accuracy. Where the witnesses are not the employer s employees, they should still be asked to assist in the disciplinary investigation if possible. If a witness insists on anonymity (so that their witness statement removes any information from which they can be identified), the investigating officer should seek to corroborate the statement from any other witnesses and should also consider whether or not the witness has any reason to provide false information. Holding investigatory meetings In some cases, depending on the circumstances and whether or not the facts are clear in respect of the employee s actions, the investigation may require the holding of an investigatory meeting with the employee concerned to obtain his/her account of events before taking the decision to proceed to a disciplinary hearing. This is likely to be appropriate where the case against the employee depends to a large extent on witness evidence given by third parties such as other employees. There is no statutory right for a worker to be accompanied at an investigatory meeting. Collecting documents & evidence In other cases, which are based on facts and records, the investigatory stage will involve collecting documentary and other evidence (for example, CCTV evidence) for use at any disciplinary hearing. It s impossible to provide an exhaustive list of the types of documents that might be relevant since this will depend on the your particular facts and concerns about this employee, but they might include letters, memos, s, timesheets, expenses claim forms, absence records, etc. Employee s views Finally, it is also advisable for the investigating officer to ask the employee if they are aware of any other witnesses to the incident or activities causing your concern or any other documents or issues that may be relevant, so that these can be followed up as part of the investigation. 3

4 The investigator The investigating officer should be sufficiently senior within your business and not connected in any way to the facts giving rise to the disciplinary charge in order to avoid any suggestion of bias in the way that the investigation is conducted. The decision Having investigated all the facts, the investigating officer should decide whether to drop the matter, arrange informal coaching or counselling or recommend that the matter be dealt with under the formal disciplinary procedure. Informal oral warnings Informal oral warnings are not part of the formal disciplinary procedure and the employee should be informed of this. Likewise, where an investigatory meeting is held solely to establish the facts of a case, it should be made clear to the employee that it is not a disciplinary hearing and it will not, of itself, result in any disciplinary sanction. Suspension of employment In a serious case, such as where there s a reasonable belief that an act of gross misconduct has taken place, consideration should be given to a brief period of suspension of the employee s employment while the case is thoroughly investigated. Unless there is a provision in the contract of employment to the contrary, this period of suspension should be on full pay. The suspension should be for as brief a period as possible and should be kept under review. It should be made clear to the employee that suspension is not considered as disciplinary action. Preparing for a disciplinary hearing Where it is recommended that the matter proceed to a disciplinary hearing, the investigating officer should then prepare a bundle of the evidence collated (comprising witness statements, relevant documents, etc. as appropriate) to be submitted to the chair of the disciplinary hearing, together with his or her summary report of the investigation and recommendations. The evidence gathered will also be sent to the employee in advance of the hearing (see further below). The right personnel The investigating officer should not be the same individual as the member of your management team who then chairs the disciplinary hearing. Note: an inadequate, unfair or unreasonable investigation may render any subsequent dismissal unfair. 2. Consider whether informal action is appropriate Cases of minor misconduct or unsatisfactory performance are usually best dealt with informally through informal counselling or coaching. Sometimes though, there ll be situations where matters are more serious or where an informal approach has not worked. If informal action does not bring about an improvement, or the situation is considered to be too serious to be classed as minor, employers should only then consider taking formal disciplinary action. 4

5 3. Provide the employee with full details of the allegations made If it s decided that disciplinary action is needed and the first of the three ACAS Code of Practice steps is appropriate, before taking any further action, you must let the employee know in writing what it is they are alleged to have done wrong and the reasons why this situation is not acceptable to you. Telling the employee what s wrong Your written communication must contain full details of all the allegations made against them and their possible consequences, to enable the employee to prepare to answer the case at a disciplinary hearing. Copies of final and signed witness statements or any other written documentary evidence that you intend to rely on to support the allegations should be attached to this letter. Disclosing your evidence & diarising the hearing The letter should invite the employee to attend a formal disciplinary hearing at which the issues can be discussed and the employee given the opportunity to state their case. The letter should make clear the time and venue for the hearing and should advise the employee of their statutory right to be accompanied at the hearing by a fellow employee, a trade union representative or an official employed by a trade union (see below). Rights to support and preparation time The employee must be given a reasonable opportunity to prepare their explanations or mitigating factors. We recommend giving at least three working days advance notice of the date of a disciplinary hearing. No prejudgment The disciplinary hearing must take place before any decision is made or any penalty is imposed on the employee. 4. Allow the employee to be accompanied at the disciplinary hearing Employees have a statutory right to be accompanied at disciplinary and grievance hearings. (A disciplinary hearing is defined as a hearing which could result in the employer administering a formal warning to a worker or taking some other action in respect of them or confirming a warning issued or some other action taken.) Employee rights to a companion Where an employee is required or invited to attend a disciplinary hearing and the employee makes a reasonable request to be accompanied, you must allow the employee to be accompanied. The persons eligible to accompany the employee are a fellow employee, a certified trade union representative or an official employed by a trade union. In addition, the accompanying individual must be: Who is the companion? selected by the employee permitted to address the hearing in order to do any or all of the following: put the employee s case summarise that case at the end respond on the employee s behalf to any view expressed at the hearing permitted to speak privately with the employee during the hearing. 5

6 The role of the companion However, the companion has no right to answer questions on the employee s behalf or to address the hearing if the employee indicates at it that he or she does not wish the companion to do so. Employees may also alter their choice of companion during the process if they wish. Employees must be reasonable To exercise the statutory right to be accompanied, employees must make a reasonable request. What is reasonable will depend on the circumstances of each individual case. A request to be accompanied does not have to be in writing or made within a certain time frame. However, an employee should provide enough time for you to make any necessary arrangements for the companion s attendance at the hearing, such as putting in place security clearance arrangements allowing access to your premises. Timing and logistics Whilst you re free to select an initial date for a disciplinary hearing, you will need to re-schedule it if the employee s chosen companion is not available on the date proposed for the hearing. The employee must propose an alternative time which is reasonable and which falls within a period of five working days (excluding weekends and Bank Holidays), beginning with the first working day after the date proposed by you. If the employee s chosen companion is a fellow employee, they must be given time off work during working hours to accompany the employee. 5. Hold a disciplinary hearing, discuss the problem, give the employee opportunity to explain their side of the story The disciplinary hearing should be held without unreasonable delay whilst allowing the employee reasonable time to prepare their case. Delays may result in the employee s recollection of events becoming dim and prevent them from providing a satisfactory explanation. Unreasonable delay may also result in a finding of unfair dismissal by an employment tribunal. Employers and employees should make every effort to attend the hearing. At the disciplinary hearing itself, you should explain the complaints against the employee and go through the evidence that has been gathered. Meaningful, fair examination of the allegations by both sides The employee should then be allowed to set out and explain their case and answer any allegations that have been made. The employee should also be given a reasonable opportunity to dispute your evidence, ask questions, present their own evidence, call relevant witnesses and be given a chance to raise points about any information provided by witnesses. The employee should be given the opportunity to question any witnesses if they disagree with the witness evidence. Finally, the employee should be permitted to explain any mitigating factors or circumstances. Where either party intends to call relevant witnesses, they should give advance notice that they intend to do this. Chairing & note-taking A member of the management team nominated as decision-maker should chair the disciplinary hearing and this person should be a different individual to the investigating officer so as to minimise the possibility of bias or prejudgment. There should also be a meeting minute-taker. 6

7 Uncooperative employees Where an employee is persistently unable or unwilling to attend a disciplinary hearing without good cause, you should make a decision on the evidence available. 6. Ensure the hearing is conducted in good faith, having regard to the principles of natural justice You must keep an open mind as to the employee s guilt or innocence and properly and fairly consider any explanations put forward by the employee. You must not prejudge the situation. Don t pre-judge Examples of prejudgment, which may render a decision unfair are: sending a warning or dismissal letter by post to the employee without prior consultation holding a disciplinary hearing only to hand a pre-written warning or dismissal letter to the employee at the end of the hearing handing down your decision at the end of the disciplinary hearing without going back to carefully consider and weigh up all the evidence. Split up the roles To minimise the possibility of bias, different members of the management team should carry out the three separate processes of investigation, decision-making and any appeal. Don t involve witnesses or victims at the hearing In addition, a witness or any victim (or indeed a close relative of a witness or victim) should not be part of the investigation or decision-making process because, again, they are likely to be biased. In very small businesses, it may not be possible to find an appropriate independent manager to chair the disciplinary hearing and/or to hear any appeal. In these circumstances, the relevant manager must act as impartially as possible. Independent arbitration, using an external arbitration organisation, is often an appropriate means of resolving disciplinary or appeal issues in small businesses if both parties expressly agree to this. Alternatively, we can help you with this Be consistent in all such proceedings Finally, you should ensure that your disciplinary procedures are applied consistently between employees, because an employment tribunal may view inconsistency without good reason as unfair. 7. Provide for an appropriate disciplinary sanction After the disciplinary hearing, you must decide whether or not disciplinary action is justified and inform the employee accordingly in writing. When deciding whether a disciplinary penalty is appropriate, bear in mind the need to act reasonably in all the circumstances. Factors which might be relevant include the extent to which standards have been breached, what you ve done in the past (and set a precedent for), 7

8 7. Provide for an appropriate disciplinary sanction (continued) the employee s track record, their position, length of service and special or mitigating circumstances which may make it appropriate to adjust the severity of any penalty. You re legally obliged to properly consider all factors when considering the appropriateness and type of any disciplinary sanctions available. Where the facts of the case appear to call for disciplinary action, other than summary dismissal, it s highly advisable to follow the 3 ACAS procedures stages below (unless this is a gross misconduct case and you ve concluded that outright/instant dismissal (often called summary dismissal ) is justified. A. Written warning B.Final written warning C. Dismissal Where, following a disciplinary hearing, an employee is found guilty of misconduct, they should be given a written warning setting out the nature of the misconduct and the change in behaviour required. The employee should be advised that the warning is part of the formal disciplinary procedure and what the consequences will be of either a failure to change behaviour or a further act of misconduct. This consequence might be the sending of a final written warning and, ultimately, dismissal. The employee should also be informed that they may appeal against the warning. A record of the warning should be kept but should be disregarded after a specified period of, usually, six months. Note that the existence of timeexpired warnings should not be a factor in deciding future disciplinary sanctions. If the disciplinary concern has been about poor performance by the employee, the warning should set out the performance problem, the improvement that is required, the timescale for achieving that improvement, a review date and any support the employer will provide to assist the employee Where there is a failure to improve or change behaviour in the time-scale set, or where the first misconduct is sufficiently serious, the employer may issue a final written warning to the employee. This final written warning should set out the nature of the misconduct and the change in behaviour required and contain a statement that failure to improve or modify behaviour, or a further act of misconduct, may lead to either dismissal or some other contractual penalty (such as demotion or transfer). The written warning should also refer to the right of appeal. The final written warning should be disregarded after a specified period of, usually, twelve months. The existence of timeexpired warnings should not be a factor in deciding future disciplinary sanctions. However, subject to the terms of any contractual disciplinary procedure, it may be possible for final written warnings to be valid for a period longer than twelve months in cases of very serious misconduct. If similar misconduct continues, the final stage of the procedure is dismissal, disciplinary transfer, demotion or disciplinary suspension according to the nature of the misconduct (but in the case of the latter three, only if these are allowed for by an express term of the contract of employment). Periods of disciplinary suspension without pay should not normally be for prolonged periods of time. The decision to dismiss should be taken only by the appropriate designated manager who has authority to do so. The employee should be informed as soon as possible of the reasons for dismissal, the appropriate period of notice, the date on which the contract of employment will terminate and the right of appeal. The decision to dismiss should be confirmed in writing. If a warning was previously given, a reasonable period of time should elapse between each warning to allow the employee a reasonable opportunity to improve and for the employer to properly monitor the employee s conduct or performance. What equals a reasonable lapse of time is not defined in law but will depend on the facts of the case and the type of misconduct or poor performance. For example, instances of employee insubordination may be met with a different stage of the disciplinary procedure on each occasion. A general complaint of poor performance or poor timekeeping would have to be monitored over a period of time to allow any meaningful analysis of improvement or otherwise. Any progression to this final stage must relate to the original disciplinary concern raised. If the employee meanwhile exhibits other unacceptable behaviour, separate warnings should be provided to him/her in respect of these new problematic behaviours. 8

9 8. Provide employees with an opportunity to appeal Where an employee feels that disciplinary action taken against them is wrong or unjust, they should be given the opportunity to appeal against the decision internally. An appeal procedure should be established and made known to the employee. Appeals should be heard without unreasonable delay and ideally at an agreed time and place. Employees should let their employer know the grounds for their appeal in writing. The appeal should be dealt with impartially and the member of the management team who decides the appeal should not previously have been involved in the case. Employees have the same statutory right to be accompanied at appeal hearings as they have at disciplinary hearings. The employee should be informed in writing of the results of the appeal hearing as soon as possible. 9. Adhere to the employee s contract of employment Once a disciplinary or appeal procedure has been created in the contract, it should be adhered to. If not, you will be in breach of contract and the breach could be sufficiently serious so as to entitle the employee to resign and claim constructive dismissal. An employee can generally claim constructive dismissal if they have been employed for two years or more. Employers are required to include details of their disciplinary and grievance procedures as part of the written particulars of employment, which must be provided to all employees within the first two months of their employment. Special cases Where disciplinary action is being considered against an employee who is a trade union representative, the normal disciplinary procedure should be followed. Depending on the circumstances, however, it is advisable to discuss the matter at an early stage with an official employed by the union, after obtaining the employee s agreement. If an employee is charged with, or convicted of, a criminal offence outside work, this is not normally in itself reason for disciplinary action. Consideration needs to be given to what effect the charge or conviction has on the employee s suitability to do their job and their relationship with their employer, work colleagues and customers. Gross misconduct Offences of gross misconduct usually warrant summary dismissal for a first offence i.e. dismissal without notice. However, summary is not synonymous with instant and incidents of gross misconduct will still need to be investigated and dealt with as part of a formal disciplinary procedure. It is still important to establish the facts before taking any action. A short period of suspension on pay may be helpful or necessary, although it should only be imposed after careful consideration, should be for as brief a period as possible and should be kept under regular review. Again, there should be a disciplinary hearing before deciding whether to take action. The principles of fairness apply as much to cases of gross misconduct as they do to ordinary cases of misconduct or poor performance. Acts which constitute gross misconduct are those resulting in an extremely serious breach of contractual terms and will be for businesses to decide in the light of their own particular circumstances. Disciplinary rules should give examples of acts which you regard as acts of gross misconduct and these may vary according to the nature of your business and what it does. However, gross misconduct offences might include: theft, fraud, unauthorised possession of company property, deliberate falsification of records or any other form of dishonesty physical violence serious bullying, unlawful discrimination or harassment deliberate damage to the employer s property extremely serious insubordination gross negligence 9

10 bringing the employer into serious disrepute. serious incapacity through an excess of alcohol or drugs. The above is intended as a guide only and is not a definitive list. Finally, bear in mind that just because you may have listed a particular offence as one of gross misconduct within your disciplinary procedure, this doesn t mean it will necessarily be regarded as such in law. The employment tribunal will have regard to all the facts and circumstances of the particular case. How we help Need friendly advice right now? No problem. We ll take care of it. Contact us on or enquiries@lhs-solicitors.com The statutory dismissal and disciplinary procedure The statutory dismissal and disciplinary procedure (DDP) was abolished on 6 April 2009 so no longer needs to be incorporated into your fair procedure. However, it still remains in force in Northern Ireland.. LHS Solicitors LLP is authorised and regulated by the Solicitors Regulation Authority. All information contained in this document is for information purposes only and not intended to be used as legal advice. 10