Disciplinary hearings

It is more important than ever to ensure employers conduct disciplinary
hearings in a procedurally fair and correct way, in order to avoid unfair
dismissal liability arising when the employer has a fair reason to dismiss. The
following checklist might be useful to employers as a way of ensuring that all
possible precautions have been taken:

Preparation for the hearing

The employee should be informed well in advance, preferably in writing, that
he is required to attend a disciplinary hearing. The time and location of the
meeting should be made clear, and there should be an appropriate period of time
prior to that for the employee to prepare and for the employer to carry out
proper investigations.

The employer should be informed in advance of the hearing of the specific
allegations and be given sight of any relevant documents to enable a proper
response to be prepared. Where appropriate, the employee should be suspended while
investigations are continuing.

The employee should be invited to take a colleague or, when the law changes
after Easter, a union official. Beware of the statutory right for the trade
union official to delay the hearing for up to five working days (section 10(4)
of Employment Relations Act 1999).

Wherever possible, the persons conducting the disciplinary hearing should
not have been personally involved in the investigation, to avoid any inference
of a pre-ordained conclusion.

Conduct of the hearing

Introduce each of the attendees and explain that this is a disciplinary
hearing being held for the purpose of considering certain allegations regarding
the employee’s conduct. Explain that a note (or sometimes a recording) of the
hearing is going to be taken. Invite the employee or the colleague to do
likewise. If applicable, deal with any issue relating to the capacity in which
the colleague is attending the meeting. Confirm that the employee may confer
with the colleague but the employee must directly answer the questions.

Advise the employee of his right to put his side of the case, to ask
questions, take notes, and, if necessary, request adjournments.

Put the facts and allegations to the employee one by one and ask for an
explanation. In order to keep the hearing structured and to preserve order,
make it clear to the employee that he should not interrupt until you have
outlined each particular point. Although the union representative or colleague
is allowed to address the hearing, he is not allowed to answer questions on
behalf of the employee.

Listen to the explanations given by the employee. Probe further where
required, keeping an open mind. Do not hesitate to adjourn at any time to
consider difficult points or requests or to research an issue raised. An adjournment
can be for a few days.

When all the facts have been discussed, ask the employee and the colleague
whether they wish to add anything. Adjourn to consider the decision. Collate
the relevant information and take advice as required. Consider all the evidence,
be objective, fair and consistent.

Advise the employee of your decision, pointing out the grounds for it and
setting out the employee’s rights in relation to an appeal.

Ensure the notes of the hearing are completed and clear and, unless there is
a good reason not to, copy them to the employee and colleague. Give the
employee formal written confirmation of the decision and the appeal procedure.

by Russell Brimelow

Head of the employment group

Boodle Hatfield 020-7318 8135

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