Wrigleys’ Essential Employment Guide - The Disciplinary Process part 2

Part two – Disciplinary Hearing and Outcome.

Disciplinary hearings form a key element in any disciplinary process. Their purpose is to assess the evidence obtained through the investigation and give the employee accused of wrongdoing a chance to put their side of events, as well as to challenge the evidence presented.

Hearings also mark a key step in the formal disciplinary process and alongside this, important statutory rights apply. Below we consider how an employer can best navigate a disciplinary hearing and some key points to be aware of.

Employers should remind themselves of their own disciplinary policy and the ACAS Code of Practice on disciplinary and grievance procedures for guidance on conducting hearings. If you haven’t already got your own disciplinary policy, subscribers to Wrigleys HR Response service have access to a template policy, if one is needed.

Last month we published Part 1 of this guide which looked at the initial steps of the disciplinary process.

1. Prepare for the hearing

The hearing manager should have received a report from the investigation manager that sets out the key points contained in section 3 of Part one of this guide. The hearing manager should review the report and establish the following:

• Do the allegations set out in the report appear to be supported on the face of it by the evidence and does the investigation manager conclude there is a case to answer?

• Does the employee have any other disciplinary warnings active on their file?

• What level of sanctions will the hearing manager need to consider if the allegations are upheld, by reference to the disciplinary policy?

• Are there any known conditions or issues that need to be accommodated (e.g. disabilities)?

Assuming there is a case to answer, the hearing manager should set about organising a hearing. This means they should write to the employee to invite them to a hearing, setting out the allegations and what the potential sanctions could be if the allegations are upheld. If summary dismissal is a possible outcome of the process, this should be made clear to the employee.

Hearing managers should also consider who is needed at the meeting. If possible, it is a good idea for a note-taker to attend the meeting to help keep track of what is said as this is often difficult for a manager by themselves. Ideally, the investigation manager should also attend to make the case against the employee and/ or to answer any questions that arise about the investigation.

The employee must be invited to attend the hearing and the invitation should also set out that the employee is entitled to be accompanied by a colleague or trade union representative and ask that if they wish to be accompanied the employee provides their companion’s details in advance.

The manager should also consider the meeting location. It may not be appropriate to hold this at the employer’s premises, particularly if the meeting space is overlooked by the employee’s colleagues or in any other sense is not sufficiently discreet.

There may be a need to hold the meeting outside of the employer’s premises or remotely to accommodate disabilities or other concerns. Managers should therefore consider a space that is neutral – hotels and other workspaces may provide meeting rooms that can be booked out for these purposes.

Problem areas 1 – companions Employees are entitled to be accompanied by a Trade Union representative or a work colleague at disciplinary hearings. In most cases this should be easy to accommodate though an employer may need to reschedule a meeting to allow the companion to attend. However, the hearing manager should not allow the employee to unduly delay or avoid the hearing by using companion availability. The right to be accompanied is also set out specifically in the Employment Relations Act 1999 and failure to allow a member of staff to be accompanied could lead to claims for breach. However, the Act itself does not allow employees to use companion availability to put off a hearing indefinitely: an employee can suggest an alternative date providing is it is ‘reasonable’ and the date falls within five working days of the day after the initial hearing date was suggested. Any alternative dates suggested by employees that do not fall within this framework can be refused by employers, though it is good practice for employers to allow flexibility on this. Therefore employers should allow a couple of days extra. Employees may insist that they are accompanied by a friend or family member from outside of work. Whilst employees do not have a right to a companion other than a colleague or trade union representative, it is worth considering allowing this, especially if the employee has a disability or otherwise needs support.

Finally, the invitation letter should enclose copies of all the relevant documents for the hearing, such as the investigation report and evidence, relevant policies and any other relevant information.

Subscribers to our Wrigleys HR Response service have access to a template disciplinary hearing invite letter if one is needed.

2. Hold the meeting

A meeting manager should open the hearing by explaining to the employee why they are here – this essentially involves recapping the invite letter and process to date to explain what the allegations are, what may be the outcome if the allegations are upheld and that the hearing has been organised to decide the matter.

The manager should introduce all the parties present, including themselves, any notetaker and investigation manager and the employee’s companion, if there is one, and explain their roles.

It is important at this stage that the manager explains the companion’s role, and that they can confer and advise the employee and present information to the hearing on the employee’s behalf, but that they may not answer questions on the employee’s behalf.

We also recommend that the manager plan to have breaks at regular intervals if the meeting is expected to last longer than an hour and make clear to the employee that if they need a break they should ask for one.

A final check should be made with the employee if they need any adjustments to the meeting to enable them to engage and they should be asked if they have read all the documents provided. If an adjustment is needed or they need time to read the documents, a suitable break should be allowed for this before the meeting starts.

The meeting should then proceed by reviewing the allegations one by one alongside the relevant evidence, at each stage asking the employee if they agree with the facts presented and if not why not, before finally asking the employee if they have anything to present on the point.

For this reason it is often helpful for the hearing manager to have a meeting plan to make sure all the key points and evidence are discussed and to ensure the employee is regularly invited to contribute and put their points across.

3. Conclude the meeting and determine an outcome

Once the allegations and evidence have been discussed, and the employee has been given the opportunity to make all the points they wish to represent, the manager needs to consider all the evidence and points presented and determine an outcome.

A hearing manager can ask the employee and their representative to leave the meeting room to allow them to determine the outcome and then allow the employee back in to hear the decision. However, if the manager feels it will take time to consider the issues involved, particularly if the employee has presented new evidence or points that might require the manager to follow-up, then it is usually a good idea to end the meeting and tell the employee that the final decision will be notified to them in due course.

If managers decide to end the meeting, they should indicate how long it will take for the decision to be made and communicated. Managers should check the disciplinary policy for guidance on this, but in any case it should take no longer than reasonably needed.

Problem areas 2 – standard of proof and assessing evidence When deciding the outcome it is important for the manager to consider each allegation in turn and decide whether that allegation is upheld or not upheld based on the evidence presented. The standard of proof required in disciplinary cases is ‘more likely than not’ – i.e. even if the manager considers it 51% likely that the allegation took place, that is sufficient for it to be upheld, but a 50% chance is not enough to find the allegation upheld. Whilst this looks straightforward, in practice it can be quite difficult to assess the chances that something happened or did not happen. A manager can weigh evidence as follows: • Pieces of evidence that are consistent are more likely to be reliable than standalone evidence that is inconsistent • ‘Raw’ documentary evidence is likely more reliable than witness evidence • Witnesses to recent events are likely to be more reliable than witnesses to events that took place some time ago • Witnesses who are independent and removed from the alleged incident are more likely to be reliable than witnesses who are involved in the incident or otherwise connected to the parties involved • When faced with contradictory evidence, employers are entitled to rely on one party provided they have reasonable grounds for doing so – for example, one witness is considered more reliable than the other based on past conduct By piecing available evidence together and assessing it neutrally, a disciplinary manager should come to the right conclusions. Of course, managers need to be careful not to make leaps that seem to make sense but lack evidence or which rely on personal biases. If there is insufficient evidence to satisfy a manager that an allegation is true on the balance of probabilities, a manager should not uphold the allegation.

Once the hearing manager has decided whether the allegations are upheld or not, they need to decide whether those allegations amount to misconduct or gross misconduct. Most disciplinary policies will provide lists of examples of what type of behaviour is misconduct and gross misconduct, but it is not uncommon for disciplinary managers to deal with cases where the misconduct doesn’t fall neatly into one of the examples provided. The boundary for gross misconduct is whether or not the employer’s trust and confidence in the employee has been broken as a result of the misconduct committed.

Guidance should be sought from the disciplinary policy on the appropriate sanction, which might range from a formal warning to immediate dismissal without notice. As part of this, the manager should consider any active disciplinary warmings on the employee’s file and factor this into the sanction decision – again guidance should be sought from the disciplinary policy on this.

Once a suitable sanction has been determined, the manager should consider any mitigating factors, if relevant. This might include personal circumstances of the employee in the background to their misconduct, how long they have been employed and whether the allegations made are the first the employee has faced.

Finally, if the employee is facing dismissal, the manager should consider any alternatives to dismissal. Again, if these are available, they should be set out in the disciplinary policy and might include a demotion, loss of overtime or bonus and so on.

Also relevant to consider is any precedent that has been set by previous disciplinary decisions, as failure to follow internal precedent may make the decision unfair and lead to risks of discrimination claims.

4. Deliver the outcome to the employee

Depending on whether the disciplinary hearing has been closed or not, the employee can be invited back to the meeting to hear the outcome and told that a letter setting this out in writing will follow in the post as soon as possible.

If the meeting was closed to allow the manager time to determine the outcome, the manager should consider calling or meeting with the employee to deliver the decision, again making clear the decision will also be set out in writing and sent to the employee. Alternatively, the manager may feel it better to simply send the decision in the post.

The decision should be broken down to explain whether the allegations have been upheld or not upheld and the main reasons for this (for example, by reference to specific evidence and why this was determinative).

When setting out the sanction, this should also be explained by reference to key documents like the disciplinary policy and whether any mitigating factors or alternatives to dismissal were considered and applied or not used.

The verbal decision and decision letter should also set out practicalities that follow. This should include, for example, how long any sanction will be active on the HR file of the employee, when they should report back to work or who will be in touch to organise this and so on.

Problem areas 3 – dismissal without notice or pay in lieu of notice Where the employee has been dismissed, it is important that the decision letter sets out the details and arrangements of this – what the termination date of employment is, when they will receive outstanding pay and benefits and their P45, and so on. An error that sometimes occurs is that when a decision to dismiss has been made on the basis allegations upheld were short of gross misconduct (either on their own or because of the cumulative effect of sanctions with sanctions still active on the employee’s HR file) the employee is dismissed without pay or pay in lieu of notice. This kind of dismissal may result in claims for breach of contract as notice can only be withheld where the employee has been found to have committed gross misconduct. That doesn’t mean an employee dismissed for misconduct needs to serve out their notice – employers may have the contractual right to pay in lieu of notice and/ or to put the employee on garden leave. The employee’s contract should be checked for this. Getting the dismissal right can be very important for an employer – dismissal in breach of contract will have the effect of nullifying certain clauses that an employer may wish to survive termination, such as restrictive covenants and confidentiality clauses.

Finally, the decision letter should set out that the employee has the right to appeal the decision, and how the employee should go about doing this and within what timeframe. It is important to be clear that the right to appeal is both against the decision and the sanction applied (if any).

Subscribers to our Wrigleys HR Response service have access to a template disciplinary decision letter, if one is needed.

Please see part 3 of our Essential Employment Guide to Disciplinaries for guidance on disciplinary appeals.

If you would like to discuss any aspect of this article further, please contact Michael Crowther or any of the employment team on 0113 244 6100. You can also keep up to date by following Wrigleys employment team on X. The information in this article is necessarily of a general nature. The law stated is correct at the date (stated above) this article was first posted to our website. Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors.