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What is a Fair Disciplinary Process?

Much has been written on this topic and we don’t propose to replicate for example the guidance given at www.acas.org.uk. This note merely recaps the main points to be covered in order to ensure that a disciplinary hearing is conducted fairly. However it’s important for employers to obtain specific advice on how to do this in practice.

1.       Firstly it’s vitally important for the employer not to reach any hasty decisions. The employer should only decide once an investigation and disciplinary hearing have both taken place. Human nature being what it is, employers often think they know what they are likely to decide before the hearing takes place. If an employer prejudges the outcome of the disciplinary process, and is actually found out, that may render the dismissal at least procedurally unfair.

2.       The employer should carry out a reasonable investigation into the matters alleged. This will very much depend on the circumstances but as a general rule the more serious the potential sanction, the more thorough the investigation should be.

3.       The employer should notify the employee in writing of:

  • The disciplinary charge (ie unauthorised absence, theft etc), giving sufficient detail to enable the employee to understand exactly what s/he is being accused of.
  • The potential sanction (ie first written warning, summary dismissal for gross misconduct etc)
  • When and where the disciplinary hearing will take place.
  • The right to be accompanied by a colleague or a trade union representative
  • If any documents are going to be referred to at the disciplinary hearing, copies should be forwarded to the employee at the same time

4.       Sufficient notice should be given to the employee to enable him/her to prepare for the hearing. The more serious the allegation, or the more complex the issue is (for example if it entails analysis of a number of documents), the more notice should be given.

5.       Ideally the investigating manager should be different from the adjudicating manager.

6.       Although there is no prescribed procedure for the disciplinary hearing itself, I’d generally recommend that:

  • The investigating matter set out the case for the prosecution (for want of a better expression)
  • The employee / representative responds to the allegations made.
  • The adjudicating manager asks any questions s/he may have of the parties present
  • If the adjudicating manager thinks that further investigation is necessary, the meeting should be adjourned in order for that to take place.
  • The adjudicating manager should ask both sides if they have any further comments they wish to make before a decision is reached.

7.       Although the Adjudicating Manager can make his/her decision there and then, I’d generally recommend simply informing the employee in writing afterwards

8.       The letter notifying the employee of the decision should:

  • Notify the employee of the main findings of fact, giving the employee sufficient detail to enable him/her to understand the decision.
  • Either notify the employee of the disciplinary sanction being imposed, or notify the employee that no sanction will be imposed (as appropriate).
  • Inform the employee of his/her right to appeal.

9.       If the employee appeals, if at all possible a different or more senior manager should consider the appeal. A further hearing should take place along the same lines as the original disciplinary hearing. Especially if the employee has criticised the investigation or procedure of the original disciplinary hearing, the employer would be wise to have a complete rehearing of the original hearing.

10.    After the appeal hearing, the employee should be notified in writing giving sufficient detail for him/her to understand the decision reached.

The potential sanctions of course range from:

  • Informal written warning
  • First Written Warning
  • Second Written Warning
  • Final Warning
  • Dismissal on notice following previous warning(s) or
  • Summary dismissal for gross misconduct.

Employers can jump stages, and go straight to a more serious sanction, depending on the seriousness of the offence.

It’s worth pointing out that even if the employee does not like the decision reached, if they feel that they have been treated fairly and reasonably, they are much less likely to bring a claim in the Employment Tribunal. To some extent you could say that the lesson is to ‘do as you would be done by’.

Have you been treated unfairly by your employer? Do you need free employment law advice? Call us today on 0207 118 0950 for a free initial chat with a solicitor for some more specific advice on fair disciplinary procedures.

For our article on the right to be accompanied at disciplinary hearings, click here.

If you are an employer and would like to receive a free disciplinary procedure, click here.

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