Disciplinary meetings - step by step guide

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1 Step by step disciplinary meetings Introduction Managers responsible for carrying out disciplinary investigations into allegations and/or chairing formal disciplinary meetings have a key role to play in managing risk in the business. The consequence of making the wrong decision, or not following procedures, could lead to a claim to an employment tribunal and a subsequent award. In addition to any award, there are the costs of legal fees, poor productivity, lost management time and any effect on morale and the reputation of the business if there is negative press coverage. It is therefore essential that in addition to following the BusinessHR guide to handling disciplinary meetings, you should review the following: your disciplinary procedure - as you should follow this carefully throughout the process our overview of dismissal legal issues surrounding disciplinary action. Bear in mind that if someone is not performing satisfactorily or is misbehaving at work, the first priority should be to help him/her to improve. Therefore if the problem is minor, it is usually best to initially attempt to resolve it informally, by discussion with the employee, so that he or she understands what is wrong and what needs to be done to reach a satisfactory standard. For cases of poor performance, a formal performance management process may be implemented prior to disciplinary action. However if the informal action doesn't bring about the required improvement, or the matter is more serious, formal disciplinary action may need to be taken. Legal considerations The ACAS Code of Practice on Disciplinary and Grievance Procedures should be followed in all disciplinary situations. Display/hide all Prepare yourself When handling a formal disciplinary meeting the starting point is to prepare: Consider whether the allegations justify the temporary suspension of the employee. This would normally only be necessary in potentially serious misconduct situations where the presence of the employee may prevent a fair and impartial investigation (or where you believe the employee may tamper with the evidence), or where you are genuinely concerned about a repetition of the misconduct in question. If so, you should issue a confirmation of suspension letter. Suspension should be on full pay and the letter should confirm that the act of suspension is not a pre-judgement. Wherever possible, have someone other than the disciplining manager undertake an initial investigation. Never allow a disciplinary investigation with the accused person to turn into a disciplinary hearing - keep the two separate. Ensure that the investigating officer has taken statements from witnesses, if relevant. Ideally these should be in the form of written witness statements, signed and dated. Collect all the facts of the case. Check the employee's personnel file for relevant information such as previous warnings related to the misconduct/performance or records of other related meetings or performance improvement plans. Consider carefully whether it seems likely - at this stage - that disciplinary action is necessary. Is the misconduct/performance likely to be sufficiently serious to warrant a formal warning, or could you 02/02/16 07:19:26 Copyright reserved BusinessHR. Not for distribution. 1/8

2 resolve the situation more easily via an informal reprimand? Check that you are fully familiar with your disciplinary procedure as you are required to follow it. Where a disabled employee is involved you will be required to make reasonable adjustments to ensure that the employee is not disadvantaged in any way (for example, finding someone to sign for a deaf employee, perhaps offering the employee the opportunity to bring a relative who can provide support.) If applicable, find out from your employee what assistance is needed. The above may also apply to anyone whose first language is not English. Prepare the employee Ensure that the employee is fully notified, in writing, in advance of the disciplinary meeting. Bear in mind the following: The employee must be given sufficient notice of the meeting so that he/she can adequately prepare. In practice this will normally be at least a day or two; in more complicated cases, more notice would be reasonable. This applies particularly if dismissal is contemplated. The employee should be told in advance: that the meeting is a formal disciplinary meeting that he/she may be accompanied by a work colleague or trade union representative if desired (ensure that you read our legal overview if the outcome may be dismissal and the person is in a role where his/her misconduct has to be reported to a regulatory body and may result in him/her not being allowed to work in that industry again, as the right to be accompanied may extend to legal representation in such cases) the date, time and location of the meeting that the meeting could result in disciplinary action. If dismissal may be an outcome, the letter should specifically state this. that the meeting will provide him/her full opportunity to state his/her case before any decision is taken full details of the allegations and the basis for these so that the employee understands what it is he/she is alleged to have done (and the reasons why this is not acceptable), and can properly consider a response. Copies of any information or documents which will be discussed at the meeting should be supplied in advance, including witness statements. In the case of the latter, you may need to consider carefully whether to give the statements without identifying the witness, as in some cases it may be important to maintain the witnesses' confidentiality (chiefly bullying or harassment cases, but also where there is genuine and well-founded fear of reprisal). These details must be confirmed in writing. Use our template letter requesting the employee to attend the disciplinary hearing. If the employee has difficulty reading, or English is not his/her first language, you should also explain the content of the letter to him/her verbally. Ensure that the employee has a copy of your disciplinary procedure. If necessary, enclose a copy with the invite letter, or remind him/her where this can be found. Ask the employee to let you know in advance whether he/she will be accompanied and, if so, by whom, and also to let you have the details of anyone he/she would like to call as a witness. If the employee is unable to attend the meeting or asks for an alternative date (due to a chosen companion not being available), reschedule the meeting for an alternative date within five working days of the original date. Open the meeting Before starting the meeting, try to ensure that there will be no interruptions. Divert your phone and turn off your mobile! The manager should take the lead in introducing the meeting: Introduce those present and their roles. (The employee's representative is there to observe, listen and take notes but may also ask questions and put forward any salient points on behalf of the 02/02/16 07:19:26 Copyright reserved BusinessHR. Not for distribution. 2/8

3 employee.) Confirm that the purpose of the meeting is to discuss the situation and to determine whether or not formal disciplinary action is appropriate. Confirm the structure and expected timing of the meeting (but bear in mind that you can never foresee how long the meeting will last as you do not know what arguments the employee will put forward). Do ensure that you have allowed sufficient time for any overrun. Recording the meeting Ensure a written record of what is being said at the meeting is taken by a nominated person. Ideally this would be an HR representative, however, if this is not possible, the Company Secretary or a manager or PA who is not involved in the case or in the appeal process would be suitable. Explain to the employee (and his or her representative) that you are taking notes and that the employee will be given a copy of these. Document everything fully so that there can be no arguments afterwards as to what was said and what action taken. It is not common to record a disciplinary hearing via electronic means such as audiotape or video, and this may make the process even more daunting for both parties. You may wish to confirm at the start of the meeting that you are turning your mobile off and would appreciate it if the others present would do so also. However, if you wish to record the meeting (because you have no-one to take notes, or the discussions will be particularly complex and you feel that you may need a verbatim record) then do ensure you notify the employee (and any witnesses whose testimony may be recorded) of this in advance. If the employee requests to record the meeting and you agree to this, then you should remind the employee that any recording is a confidential record, and it should not be disclosed to anyone (other than his/her professional advisor if appropriate) and certainly not be uploaded (in whole or in part) onto any social media. The case Outline the allegations against the employee. Supporting evidence, witness statements etc should be presented in full. ALL evidence should be gone through again during the meeting, even if it has already been supplied in advance to the employee, to ensure that the employee (and his/her representative) are clear on what is being relied upon. It is important to take a formal but polite approach throughout the meeting. Do not argue. Avoid contact or gestures that the employee may consider threatening. Response The employee should be asked to respond to the allegations. It is critically important that you remain unbiased and use the disciplinary meeting to gather information. Fully explore with the employee: what information he/she would like you to consider what he/she agrees with what he/she disagrees with and why what supporting evidence there may be what, if any, mitigating circumstances he/she would like you to consider. In some cases it may be appropriate to offer the employee an adjournment before he/she responds to the allegations made. Keep an open mind and ask questions. Listen carefully to the answers. Allow the employee to ask questions. 02/02/16 07:19:26 Copyright reserved BusinessHR. Not for distribution. 3/8

4 Call any witnesses and allow time for both you and the employee to question them. Ensure that witnesses are only present whilst they are actually giving evidence. If things become heated or if you want to check out particular facts, do remember that you can adjourn the meeting at any stage to calm down or to take advice. If there are a number of issues, it may be best to take them one by one - ie go through the allegations regarding the first issue, invite a response; go through the second, invite a response etc. At the end of the meeting, summarise what has happened and consider an adjournment before making your decision. Adjourn to consider It is good practice to adjourn before announcing your decision. This will allow you to: 'stand back' and carefully consider what has been said interview other people if relevant and especially if any new points came out of the meeting check your disciplinary procedure check any other policies relevant to the case (ie IT policy for Internet/ abuse) check the employee's record for any other warnings consider any precedents and how similar situations have been handled in the past (for consistency) also consider and investigate any allegations by the employee that other employees are guilty of the same misconduct/unsatisfactory performance but are not being disciplined check whether the employee has any illnesses/conditions that could have an impact show the employee that you are taking everything that he/she has said into consideration before reaching a decision reach an objective decision. An adjournment also allows the employee to consider if there is anything else he/she wishes to add. It allows you to act fairly and to be seen as doing so. There are plenty of cases which provide useful reminders of the importance of giving full consideration to the employee's defence. First Bristol Ltd v Bailes is one of these. Mr Bailes was a bus driver who was dismissed in June 2012 after he tested positive in a saliva test for cocaine. However he insisted that he had never taken drugs and that the positive result could only be because he had handled contaminated bank notes whilst eating his sandwiches (which increased the likelihood of the drug being transferred from his hands to his mouth). A study by the Forensic Science Service in 2010 found that almost every British bank note in circulation is likely to contain traces of cocaine, with 1 in 20 likely to have very high readings. Mr Bailes spent 440 on a hair follicle test. This is more accurate than a saliva test, and was obtained through his GP. This test proved that he had not had drugs in his system in the last three months. He produced the results at his appeal hearing, and asked that his length of service (22 years) and his clean disciplinary record should be taken into account. However, First Bus refused to reinstate him. The employment tribunal found that he had been unfairly dismissed and criticised the failure to consider his defence and test results. However, that was not the end of the matter. The employer then appealed to the EAT and then to the Court of Appeal, but was unsuccessful at both courts. The CA sent the case back to the original tribunal to re-examine some reports. Almost three years after his dismissal, Mr Bailes, who found it hard to gain employment at the same previous level of pay, was awarded compensation of 84,000. Communicate your decision Following the adjournment, check if the employee has anything he/she wishes to add. If so, take another adjournment to consider what he/she has said. The manager (or panel if a panel is involved) must keep an open mind and decide whether the employee is guilty on the balance of probabilities. If the employee is believed guilty of the alleged misconduct or poor performance, the next stage is to determine the appropriate level of disciplinary action to take. In arriving at your decision, consider: 02/02/16 07:19:26 Copyright reserved BusinessHR. Not for distribution. 4/8

5 the previous disciplinary record of the employee (normally only taking into account warnings which are still 'live' and which are related to this particular incident) his/her length of service the seriousness of the misconduct precedents - how previous comparable instances have been handled. You are expected to treat people fairly and consistently and it would be unfair to dismiss one employee for an incident for which another employee received a lesser warning. If you operate across a number of sites, it would be best to check precedents with your head office. any mitigating circumstances or provocation. Confirm your decision with a concise explanation. Any warning should be confirmed in writing. In the worst case you will need to dismiss, either with notice or, if the employee is believed guilty of gross misconduct, without notice. Note that, other than in cases of gross misconduct, an employment tribunal is unlikely to find a dismissal fair unless the employee had received a final written warning when previous disciplinary action was taken relating to the same type of issue. The employee must be informed of his/her right of appeal, to whom an appeal should be made, and the manner and timescale in which to do this. For disciplinary action short of dismissal, you should confirm what standard of conduct or performance is required of the employee, what support is available to help him/her to succeed, the timescale for achieving this improvement, a review date, and what will result if there is no (or insufficient) improvement or a repetition of the misconduct in question. Rescheduling meetings If you, the employee or the employee's companion cannot attend a scheduled meeting or appeal meeting for a reason that was not reasonably foreseeable at the time the meeting was arranged (eg illness), the meeting must be rearranged. If the employee's companion cannot attend, the employee must propose an alternative date within five working days. If acceptable you must invite all parties to attend at this time. If the employee simply fails to turn up for the meeting, it is always advisable to give him/her a further opportunity to attend, so write again with a re-arranged date. If the employee goes off sick, for example, you may wish to contact him/her to check whether, whilst unfit to work, he/she may still be able to attend the meeting. If he/she has gone off sick with stress as an immediate response to being called to a disciplinary hearing, you may suggest that in most cases it would be beneficial to his/her recovery to resolve the issue, rather than worrying about it. If the employee refuses to attend the meeting, or is too unwell to do so, and it looks as though the absence could be protracted, you may consider requesting an occupational health report to confirm whether the employee is fit enough to attend the meeting or not, and you may also wish to write to confirm that you reserve your position in relation to potential disciplinary action (in order to reduce the risk of any delay being viewed as an acceptance by you of the alleged misconduct). Appeals If the employee appeals against the decision, an appeal hearing will need to be arranged, again following the principles above. Write to the employee confirming the invitation to the appeal hearing. An appeal hearing is a further meeting with the employee, not just a review of the paperwork. Where possible, the appeal should be heard by a manager both senior to the one making the original decision and who has not been involved in either the initial investigation or in making the original decision which is being appealed against. If you work in a small organisation and there is no-one senior or independent you may wish to consider inviting an external advisor to attend to get a 'fresh pair of ears' and to advise. (We can assist with this if you wish.) Employees are not required to put an appeal in writing, although we would recommend that you ask for 02/02/16 07:19:26 Copyright reserved BusinessHR. Not for distribution. 5/8

6 this. But it is advisable to still allow appeals which are lodged verbally or by etc. There is also no set deadline by which the employee must appeal. The only requirement is that the employee should appeal "without unreasonable delay". The role of the person hearing the appeal is to review the decision made and to consider whether it was fair and reasonable. As it is the employee who is making the appeal, it is common to introduce the participants and the reason for the meeting and to then invite the employee to outline, in full, the grounds for the appeal and to say why he/she considers the decision was not fair. Similar to a disciplinary hearing, the employee has the right to be accompanied and either party may invite witnesses to put forward further evidence. An appeal hearing would normally concentrate on the points the employee raises, but if there is doubt as to whether the initial proceedings were conducted properly, it may be advisable to hold a complete re-hearing. If the employee puts forward new evidence which was not previously considered, you will need to consider this evidence to see if it puts a different perspective on the matter. If it potentially does, you will need to hear the evidence in full and may need to adjourn to investigate further. You may wish to invite the manager responsible for the original decision to outline the case for this - to summarise the investigation, the points considered at the disciplinary hearing, the reason for deciding on what he/she felt was an appropriate penalty. Following the appeal hearing, you may wish to adjourn to consider what the employee has said, to take further advice or investigate further, especially if new evidence has come to light. The person hearing the appeal needs to decide: Was there reasonable belief that the allegations were true? Was the investigation full and thorough? Was the process correct? Was the decision reasonable, in the circumstances? When considering the original penalty, you are not concerned with whether the decision was the right one in hindsight but whether it was 'reasonable' at the time. Consider each of the points raised and decide whether it indicates bias or inappropriate concerns by the original decision maker. Once you have been through all the arguments and considered each one in turn, decide whether the original decision was reasonable. If so, you uphold the decision; if not you uphold the appeal and either cancel the disciplinary warning, reduce it to a lesser one or, if the appeal is against dismissal, reinstate or re-engage the employee. Whatever the eventual outcome of the appeal, do write to confirm this. Whilst you do not want to get into further arguments, it is usually worth going into sufficient detail so that any advisor to the employee or subsequent tribunal can see that you have given full consideration to each of the points raised. Where an employee feels that a warning has been unfairly awarded, because of discrimination or personal vendetta etc, it would be better to allow him or her to raise a grievance against this. Follow up Remember that the purpose of a disciplinary warning is to improve performance, not to punish! Review the performance of the employee and find ways of supporting him/her to improve. Display/hide all Further information 02/02/16 07:19:26 Copyright reserved BusinessHR. Not for distribution. 6/8

7 You may also wish to give any manager involved in a disciplinary hearing a copy of our DOs and DON'Ts on discipline and we would advise you to read our legal overview on discipline and our step by step guide to disciplinary investigations. You may wish to also read the ACAS Code of Practice on Disciplinary and Grievance Procedures and the associated guidance. ACAS also has a guide specifically covering workplace investigations. Back to top Related template documents: Disciplinary procedure Discipline - suspension letters Witness statement - disciplinary or grievance Discipline - invite to disciplinary hearing Discipline - confirm warning Dismissal (misconduct or poor performance) DOs and DON'Ts on discipline Back to top Frequently asked questions (FAQs) An employee was issued with a first written warning and then appealed. The appeal person upholds the decision, but feels that a final warning was warranted and wishes to increase the penalty. Is this allowed? No. The person chairing an appeal hearing can uphold the decision (and the original warning stands) or uphold the appeal and cancel the warning, or issue a lesser warning, but should not issue a higher warning than the one already received. The employee's union representative cannot attend the meeting we have scheduled as he's on holiday for two weeks. Would it be reasonable for us to suggest the employee finds someone else to accompany her? If the delay is going to be longer than a week, you can ask the employee to find another representative in order to save the process dragging out too long. We have an employee who has been disciplined several times for the same thing, however each time it happens, the previous warning has just expired! Can we take this into account? This situation is not simple. There have been a couple of cases where employees have been dismissed for misconduct, where previous warnings had expired but have been legitimately taken into account. Airbus UK Ltd v Webb is one of those - however in this case the employee was guilty of misconduct that could have resulted in summary dismissal anyway and the previous expired warning was only used to justify different treatment between Mr Webb and his colleagues. Each case should be looked at individually and considered carefully as there MAY be some limited cases where expired warnings can be taken into account. In future, you might want to consider issuing an extended period for the warning. Do check your disciplinary procedure and contracts to ensure that you are within your rights to do this. If not, it's worth amending your policies to allow it in future for serious misconduct issues. 02/02/16 07:19:26 Copyright reserved BusinessHR. Not for distribution. 7/8

8 One of our employees, still in her probationary period, has been caught stealing from our retail outlet. Do we have to go through the full disciplinary process with her to dismiss? Check her contract and your disciplinary procedure. Some state that a probationary employee is not subject to the disciplinary procedure. However, any employee who commits an act of gross misconduct could be summarily dismissed without the need for any previous warnings, and given the potential severity of a dismissal for gross misconduct, you would be advised to still have a full investigation and a disciplinary hearing prior to making your decision. Back to top 02/02/16 07:19:26 Copyright reserved BusinessHR. Not for distribution. 8/8