What is a Disciplinary Hearing?

A disciplinary hearing is a formal meeting to address serious employee misconduct, preceded by a full investigation and a detailed invitation letter outlining allegations, evidence, and the right to be accompanied. Employers must follow the ACAS Code of Practice, remain objective, ask open questions, and allow the employee to present their case with a companion. Proper procedure reduces tribunal risks, and outcomes may include dismissal without notice for gross misconduct.

From time to time, your business will face situations where an employee’s behaviour breaches your policies and rules.

If this breach is serious enough, you may need to take disciplinary action to ensure it does not occur again.

In this guide, Croner will provide expert insights on how to properly undertake a disciplinary hearing. We will also cover the Acas code of practice around disciplinary procedures that your line managers and HR representatives need to keep in mind during these processes.

• Acas Code of Practice on disciplinary and grievance procedures
• Frequently asked disciplinary hearing questions
• Is the employee entitled to representation?
• Disciplinary hearings and notice periods
• Do you need help with a disciplinary hearing?

Understanding disciplinary hearings

A disciplinary hearing is a meeting between you, your line manager(s), and/or relevant HR representative, and an employee. This meeting is held when an employer wishes to discuss an allegation of gross misconduct, or any other behaviour that merits disciplinary action, with one of their employees.

As an employer, you or your managers should always undertake a disciplinary hearing, which forms part of the disciplinary procedure. This should include carrying out a full investigation to identify all relevant information and interview any witnesses if applicable. Thereafter, during the disciplinary hearing, witness statements and other relevant evidence can be used as evidence to justify a specific course of action or outcome.

It is important that the witness reviews their statement to make sure they are sure it is true and are happy for it to be reflected on record. However, if they express uncertainty about the correctness of their original statement, the employer should consider why the witness is unsure and consider the reasons for this, as this could affect the reliability of the evidence and fairness of the process.

What is a disciplinary letter?

If, in the end, you or your manager(s) decide there is a valid case to answer for in a formal hearing, they should send the employee a disciplinary hearing letter before the hearing commences.

The disciplinary hearing letter should include the following information:

• Time.
• Date.
• Location.
• Individuals who will be present.
• Copies of relevant documentation to be presented in the hearing.
• A statement reminding the employee of their right to be accompanied during the hearing.

Remember, it is essential to include details of the allegations, so the employee fully understands the scope of the situation. Remember, as the employer, you can’t have decided at this stage, but the letter should detail which rules are alleged to have been broken.

During the hearing, it can be helpful to bring a copy of the company policy or some form of reminder for the employee so you can verify the transgression if queried.

Lastly, the disciplinary hearing letter should outline the potential consequences of the disciplinary procedure. If this isn’t included, the employee cannot prepare their defence stringently, and, in this case, procedures will not be fair.

Acas Code of Practice on disciplinary and grievance procedures

It is important to note that Acas sets out the standard procedure employers should follow for all grievance and disciplinary processes. Employers should follow this code, but it is not legally required. However, for employers who haven’t followed the code to an unreasonable extent, this can be taken into account by an employment tribunal, which can award an uplifted compensation amount of up to 25%.

For this reason, familiarising yourself with this code is a really good idea. This will help you avoid unfair procedures, which ultimately, decreases the risk of an employment tribunal.

As employment law and HR specialists, we recommend not undertaking any disciplinary meetings until you or your relevant line manager reviews the Acas code of practice on disciplinary and grievance procedure, as well as your organisation’s disciplinary procedure.

Frequently asked disciplinary hearing questions

You and your employee will have the chance to ask questions during the hearing.

From your side, as you represent your business, you must ask questions that relate directly to the issue at hand. It is important to keep questions open so the employee can respond in as much detail as they can.

For instance, if an issue occurred in the cafeteria such as unwanted sexual advances, you could ask questions such as, “Did anything unusual happen in the cafeteria on Tuesday?”. These help to probe the events from the employee's perspective.

Always remain objective and don’t offer an opinion on the narrative unless you must. Remember, opinions are not always rooted in facts. It is vital to make conclusions only on the facts of the case.

Next, it will be important to enquire about any witnesses who can verify the employee’s story, if the employee recounts a different version of events compared to those that your evidence suggest.

Similarly, ask for any evidence the employee might have that will objectively verify their version of events. Once you have obtained the relevant information during the hearing, you can end the interview with an open question such as:

• "Do you have anything else to add that you would like me/us to consider at this time?"
• "How did you find the hearing? Do you have any issues with the way we have undertaken this procedure?"

If the employee supplies an adequate explanation for the situation, see the hearing through to the end, then consider all evidence and statements provided.

This will involve a process of investigation, where you review the employee's statement alongside the evidence of the employee(s)/manager(s) who accused them of misconduct. Look for contradictions or inconsistencies.

Need support in undertaking effective, compliant disciplinary hearings? Croner HR specialists are on hand 24/7 to assist you. Call 01455 858 132 for FREE, same-day advice.

Is the employee entitled to representation?

As we've mentioned, the employee has the right to be accompanied by a colleague or an official employed by a trade union during the disciplinary hearing. A trade union official can also be a co-worker, but this will rarely be the case for SMEs.

The employee can be accompanied by a trade union official who is not an employed official and must be certified by their union as being competent to accompany a worker(s).

An employee can also request that a family member be present. But typically, this will be appropriate for someone under 18 or it may be a reasonable adjustment for a disabled employee.

However, in other cases, you, as the employer, can choose whether to allow this, unless explicitly stated in their employment contract.

A union companion can present your employee’s case and may confer with them. The companion may not answer questions on the employee’s behalf, however, but can serve as a witness, sounding board, and support provider.

Disciplinary hearings and notice periods

If it looks like your employee is considering handing in their notice before the disciplinary hearing, how you respond depends on whether the employee must work a notice period.

If they do, you may decide to continue with the investigation as normal because it’s important to address the matter, your concerns, or a complaint.

If a conclusion finds the employee committed gross misconduct after holding the disciplinary hearing, notice periods and resignation procedures may not irrelevant. In this case, you can formally dismiss the employee without notice/summarily dismiss the employee.

If the issue is simple (for example, the employee shouted at a senior manager and there was one witness present), then giving the employee a few days’ notice of the disciplinary hearing is acceptable. However, if the issue is a complex one, involving multiple people and a series of evidence, it is worth giving the employee a week or so to adequately prepare for the hearing.

Do you need help with a disciplinary hearing?

We can help. Speak to a Croner expert for FREE, same-day, and personalised legal advice on 01455 858 132.