Building upon our previous guide on conducting effective disciplinary investigations, this article aims to further support HR professionals in navigating complex workplace situations.
Here, we focus specifically on providing a comprehensive overview of everything you need to know about preparing for a disciplinary hearing, from notice periods and appropriate questioning, through to handling the potential outcomes.
As a consultancy specialising in the management and conduct of investigations, reviews and inquiries, we have a great deal of experience providing an independent account into the disciplinary process of organisations, which allows us to provide comprehensive guidance on managing the disciplinary process.
What is a disciplinary hearing?
A disciplinary hearing is a formal meeting where an employee is given the opportunity to respond to allegations of misconduct or poor performance. It allows you, as the employer, to present evidence and make a decision regarding potential disciplinary action.
A disciplinary hearing serves several key purposes:
Establishing the facts
The hearing provides a structured platform for both the employer and the employee to present their perspectives on the situation. This allows for a thorough examination of the evidence gathered during the investigation and helps to establish a clear understanding of the facts.
Fairness and due process
Following ACAS guidance a disciplinary hearing ensures that the employee has the opportunity to be heard and to defend themselves against the allegations. This adherence to due process is crucial, especially if the case were to progress to an employment tribunal. In such situations, the employer would be required to demonstrate that they followed a fair and proper disciplinary procedure, which includes holding a hearing before taking any serious disciplinary action, such as dismissal.
Opportunity for explanation
The hearing allows the employee to explain their actions or performance and offer any mitigating circumstances. This can be valuable in determining the appropriate course of action.
Maintaining a functional workplace
Ultimately, the aim of a well-conducted disciplinary process, including a hearing, is to help the organisation operate effectively. By addressing misconduct or performance issues, a hearing can help to maintain a positive work environment where employees are held accountable and adhere to expected standards.
Potential for improvement
The hearing can offer an opportunity for the employee to understand the consequences of their actions and, potentially, receive guidance for improvement. Most disciplinary policies will stress the need for corrective actions, rather than punishments and penalties.
How to prepare for a disciplinary hearing as an employer
Effective preparation for a disciplinary hearing offers several advantages. A stronger case can be presented when you are well-informed and organised. This allows you to articulate the allegations clearly, present compelling evidence and make informed decisions throughout the hearing.
Enhanced fairness is achieved when both parties are prepared, as it ensures a clear understanding of the process and the opportunity for everyone to be heard. Increased efficiency results from taking the time to prepare beforehand because it minimises delays and confusion, allowing for a smoother and more focused hearing.
Finally, reduced risk of legal issues can be achieved by following best practices and adhering to proper procedures. This helps to ensure that the hearing is conducted fairly and in compliance with applicable laws.
The ACAS code of practice on disciplinary and grievance procedures provides basic recommendations and helpful guidance for employers to ensure a standard of reasonable behaviour. The following is stated within the guidance:
“A failure to follow the Code does not, in itself, make a person or organisation liable to proceedings. However, employment tribunals will take the Code into account when considering relevant cases.”
ACAS guidance
Key steps for preparation
Gathering essential documentation
- Collect and review all relevant documents: This includes; written warnings, witness statements, emails, disciplinary records, physical evidence and any other employee records pertaining to the case.
- Provide requested documents: If appropriate, make available to the employee any documentation they request.
- Allow employee input: Accused employees should have the opportunity to submit evidence and call witnesses during the hearing.
Ensuring a productive environment
- Arrange a private room: Create a distraction-free environment for the hearing, possibly away from the main office / place of work.
- Accommodate special needs: Consider making reasonable adjustments to the arrangements for employees who need them. You should be proactive and ask – don’t wait for the person to raise their needs at the last minute.
Anticipating the employee’s defence
- Consider potential explanations: Think about the defence or explanations the employee might offer and prepare appropriate responses.
- Organise witness attendance: Ensure witnesses are available to attend the meeting or provide written statements if unable to do so.
Organising the hearing process
- Inform the employee: From the outset, notify the accused employee of the entire disciplinary process and what to expect at each stage.
- Create a clear agenda: Outline the proceedings to be followed during the hearing.
- Schedule a follow-up hearing: Organise a follow-up hearing promptly after concluding the investigation.
Setting the stage for the hearing
Following a reasonable notice period (typically 3-5 business days), formally invite the employee to a disciplinary hearing. The invitation should be in writing and outline the date, time, location and purpose of the meeting. Clearly state the allegations against the employee and provide a summary of the supporting evidence.
The composition of the hearing panel can vary depending on your organisation’s structure. Typically a panel consists of:
- The Employee: The employee is the central figure in the hearing.
- HR Representative: You, as the HR manager, will typically facilitate the hearing.
- Line Manager: Their presence can provide valuable insights into the situation.
- Witnesses: Both the employer and the employee may choose to have witnesses present to offer their perspectives on the situation.
- Employee Companion: The employee has the right to attend the hearing with a companion or representative, such as a colleague, trade union representative, or lawyer. While they can offer support and advice, they are not usually entitled to speak on the employee’s behalf.
What questions are asked at a disciplinary hearing?
The specific questions asked at a disciplinary hearing can vary depending on the nature of the allegations. However, here are some common types of questions that may be asked:
Questions for the employee:
- Clarifying the allegations: “Do you understand the specific allegations against you?”
- Understanding the evidence: “Are you aware of the evidence that has been presented against you?”
- Providing an explanation: “Can you explain your side of the story?”
- Acknowledging wrongdoing: “Do you admit to the misconduct or performance issue?”
- Considering mitigating factors: “Are there any mitigating circumstances that you would like to share?”
- Reducing the possibility of complaint: “Do you think this hearing was held fairly?”
Questions to the employer/ HR manager:
- Presenting evidence: “What evidence do you have to support these allegations?”
- Explaining the disciplinary process: “Can you explain the disciplinary procedure and potential consequences?”
- Addressing the employee’s defence: “How do you respond to the employee’s explanation?”
Questions for witnesses:
- Verifying the employee’s actions: “Can you describe what you witnessed on [date]?”
- Providing supporting evidence: “Do you have any documents or evidence that supports your testimony?”
Remember, these are just examples. The actual questions asked will depend on the specific circumstances of the case and the information gathered during the investigation.
Disciplinary hearing tips for employers
When conducting a disciplinary hearing, it’s essential to approach the situation with professionalism, fairness and a clear understanding of the process.
Before the hearing it’s important to ensure you have all relevant documentation, including the employee’s disciplinary record, witness statements and any evidence supporting the allegations. If allegations are later deemed to be poorly defined, the manager conducting the disciplinary hearing should be rigorous in evaluating the evidence.
Notify the employee of the hearing in writing, specifying the date, time, location and nature of the allegations. The time between which the events occurred and the hearing itself should be as short as possible to avoid causing unnecessary stress to the employee.
During the hearing it is essential to maintain neutrality. Avoid expressing personal opinions or biases – your role is to gather information and make a fair assessment. Ask open-ended questions and encourage the employee to provide detailed explanations as this allows them to present their side of the story fully, then pay close attention to the employee’s responses and take detailed notes.
Stay calm and avoid getting into arguments and at the end of the hearing, summarise the main points discussed and ensure that the employee understands the potential consequences of their actions.
Training for staff conducting hearings about how to ask questions, gather evidence, record, classify and evaluate it, helps them be aware of the danger of relying too heavily on impressions of how people come across at interview.
It is essential for HR to fulfil their duty of care by supporting the wellbeing of staff during disciplinary hearings, which can be particularly distressing for those involved.
Finally, it’s vitally important to remember one thing…there’s a person in there!
What happens after the disciplinary hearing?
After the hearing, document the key points discussed, the employee’s responses and any decisions made. Communicate the outcome by informing the employee of the decision and the reasons for it in writing, which should include any disciplinary action to be taken.
If disciplinary action is imposed, it’s important to follow through and ensure that it is implemented consistently and fairly. However, it should be made clear that this is not the end of the process and that the appeal process is a genuine one, which will look at all representations fairly.
It is vital to ensure all relevant documents are properly stored for future reference and if the employee does appeal against the decision, fairness should be maintained throughout the process. Management responses to appeal letters should not be overly defensive and should allow for the fact that evidence is open to different interpretations. Communications with the employee in the run up to appeal hearings should give a balanced assessment of the possible outcomes, rather than focusing on negative aspects.
In cases of dismissal it is generally regarded as poor practice to dismiss someone by email or letter, unless their absence from work gives the employer no alternative. Communicating face-to-face ensures the employee fully understands why the decision has been made and also allows additional information, such as notice period and what the employee is supposed to do during notice, to be provided more effectively.
Conclusion
Effective preparation is crucial for a successful disciplinary hearing. By conducting a thorough investigation and gathering compelling evidence, employers can make informed decisions and minimise the risk of legal challenges. In addition, and perhaps most importantly, organisations who follow these guidelines and those set out by ACAS can ensure the wellbeing of staff during what can be an incredibly distressing time for those involved.
Verita offers comprehensive support for workplace investigations, from defining allegations to gathering evidence and carrying out reviews of disciplinary procedures. Our expertise ensures that you have all the necessary information and documentation to navigate the disciplinary process confidently.
If you need help reviewing a disciplinary process, or would like to know more about our workplace investigation training, please book a free consultation, or if you prefer, use our contact form, or contact Ed Marsden on 020 7494 5670 or [email protected].
