A disciplinary hearing is a formal process used by an employer to deal with issues relating to an employee’s work and issues such as:
Misconduct due to unacceptable or improper behaviour
Capability covering performance issue
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An employer should first review is the matter can be resolved informally using discussions to determine how any improvements can be made or whether training can assist if it is a capability issue.
A misconduct issue will arise where an employee behaves in a way that is inappropriate or breaks rules relating to the workplace. There is a wide range of behaviours that would fall under misconduct and they would include:
Being absent from work without permission or valid reason
Certain conduct is regarded as “gross misconduct” due to the serious nature of the act, examples of which include:
Employees that are called to a disciplinary hearing will wonder what they can expect. The disciplinary process will be set out in the employer’s disciplinary procedure. It is necessary for the employer to have completed a thorough investigation giving the employee the opportunity to give their version of events. If the employer is still not satisfied after this investigation, then a disciplinary hearing has to be held to discuss these concerns. The employee must be provided with the employer’s evidence from the investigation in advance of the meeting.
It is best practice for different people to run the investigation, disciplinary hearing and any appeal. This ensures a process that is as fair and independent as possible.
The employee has the right to take a trade union representative or colleague to the disciplinary hearing. Generally, an employee cannot be legally represented at a hearing since it is an internal process- the exception is where the hearing could result in the employee no longer being able to work in that field.
At the hearing, the employer will outline the reason for needing the meeting and any evidence that they have to support their claims. The employer will also be given an opportunity to put their version of events, including mitigation where they agree that there have been issues. The employee will be given the opportunity to ask questions as well as calling their own witnesses.
The outcome of the hearing should not have pre-determined before the hearing itself. Therefore, it is usually the case that a decision will not be made at the end of the hearing and the employer will take time to consider what has been discussed and make any further checks where necessary.
Based on what was heard at the hearing, the employer will have a range of potential outcomes to choose from:
They can decide that no further action is required and the disciplinary process is over
The employer may decide that there were valid issues in relation to the employee’s conduct and that some form of discipline is needed. This can be a formal warning, demotion, requirement to improve performance in a set time frame or even suspension without pay.
In the most serious of cases the employee can be dismissed and this can be with or without notice.
Where an employee does not agree with the outcome of the hearing then they have a right of appeal and the employer should notify them as such. The employee can appeal on the following grounds:
The process used for taking disciplinary action, for example, the disciplinary policy was not followed
The fairness of the process, which could be raised if the employer did not detail the employee’s rights
The evidence used to support the decision, for example, if it was misleading or there was a lack of evidence
The final decision made, for example, if it is very different from a trend of similar cases or the proposed sanction seems too harsh
The appeal hearing would either be a review of the disciplinary process, without a rehearing, or a full re-hearing of the case. Again the outcome of the appeal is unlikely to be given on the same day as the hearing and the employee should be informed in writing after the hearing once a decision is made.
If the employee disagrees with the findings of the appeal hearing, it is sometimes possible to make a claim to an employment tribunal.
The information on this website is intended as a guide and does not constitute legal advice. Vardags do not accept liability for any errors in the information on this website, nor any losses stemming from reliance upon the statements made herein. All articles and pages aim to reflect the legal position at time they were published, and may have been rendered obsolete by subsequent developments in the law. Should you require specialist advice, tailored to your situation, please see how Vardags can help you.