13 Nov 2018
From time to time, your business can face situations where an employee’s behaviour breaches your rules.
If this breach is serious enough, you may want to take disciplinary action to ensure it doesn’t happen again.
In this guide, we will provide you with expert insights on how to properly hold a disciplinary hearing, along with looking at the various laws you need to keep in mind.
Understanding disciplinary hearings
A disciplinary hearing is a meeting between you and an employee, held when you wish to discuss an allegation of gross misconduct with an employee (or any other behaviour that merits disciplinary action).
You should always go through normal disciplinary procedure before conducting a hearing, including carrying out an investigation to find all relevant information and interview any witnesses. During the disciplinary hearing, witness statements will supply you with evidence.
It is important the witness reviews their statement to make sure they are happy it is true. If there is any uncertainty, let the witness amend their statement.
If you decide the allegations need addressing with the employee, send the employee a disciplinary hearing letter.
The letter should include information on the time, date, and location of the hearing, as well as details on who will be present, copies of documentation for the meeting, and the employee’s right to have a companion present.
It is also vital to include details of the allegations so the employee fully understands the situations and if their behaviour broke any rules in the employment contract or handbook. Bring a copy of the company policy or some form of reminder for the employee so they can verify the transgression.
The disciplinary letter should outline the potential consequences of the disciplinary procedure. If this isn’t included the employee cannot prepare their defence stringently, and therefore is not fair procedure.
Common 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, ask questions that relate directly to the issue. Keep questions open so the employee can respond in as much detail as they can. Asking broader questions, along the lines of, “Did anything unusual happen in the cafeteria on Tuesday?”.
Remain objective and don’t offer an opinion on the narrative unless you have to.
It’s important to enquire about any witnesses who can verify the employee’s story. Similarly, ask for evidence the employee has to verify their version of events. You can end the interview with an open question asking if they have anything else to say that they wish you to take into account.
If they provide an adequate explanation for the situation, see the hearing through to the end, then consider all evidence and statements provided.
When you finish questioning, you should give the employee the opportunity to speak, and ask any questions they have.
Cross-examine the statement alongside the testimony of the employee who accused them of gross misconduct and pull out any contradictions or inconsistencies. You should then query these with the employee and ask for an explanation.
Is the employee entitled to representation?
The employee has a right have a colleague or a trade union representative accompany them to the disciplinary hearing. A trade union official can also be a co-worker, but this will rarely be the case for SMEs.
They employee can seek outside representation from a trade union, but the official must be an officer or an elected representative.
An employee can request that a family member be present; you can choose whether or not to allow this, unless explicitly stated in their employment contract.
A union representative can present your employees case and may confer with them. The companion may not answer questions on the employee’s behalf, but can serve as a witness, sounding board and provide support.
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 has to work a notice period.
If they do, you should 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 become irrelevant. You can formally dismiss the employee without notice/summarily dismiss the employee.
You have to give a reasonable amount of time for them to prepare this but this will differ depending on the allegations. The time given doesn’t have to be overly lengthy, just reasonable, so consider your timing carefully.
If the issue is simple (for example, the employee shouted at a senior manager and there was one witness present), then a few days’ notice is fine. However, if the issue is complex, involving multiple people and a series of evidence, it is worth giving the employee a week or so to adequately prepare.
Do you need help with a disciplinary hearing?
We can help. Speak to a Croner expert for personalised advice: 01455 858 132.
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