Preparing for a disciplinary hearing with your employee

Before you can take disciplinary action against an employee, you need to conduct a disciplinary hearing. This is a chance to go through the allegations, and for the employee to defend themselves.
 

Before the disciplinary hearing

Your first step is to understand your company’s disciplinary process. The procedure should also comply with the ACAS Code of Practice.

Failure to adhere to this could lead to employee taking you to an employment tribunal or the courts. If that happens, seek the advice of an employment solicitor as soon as possible.

Generally, disciplinary hearings relate to three issues:

• An employee’s conduct at work
• An employee’s capability to do their job
• An employee taking too much time off work

Next, you need to ascertain whether the allegations are true – and if they are, can you prove it?

As soon as possible, gather evidence. This might include CCTV footage, statements from witnesses, or digital evidence like emails.

Once you feel you have a good case, your employee needs to be notified of the hearing in writing – either in the post or email (or even both). This invitation should explain:

• The allegations against your employee
• The date, time, and location of the hearing – virtual hearings are also permissible
• Possible disciplinary action, for example, dismissal
• A breakdown of the disciplinary process

You should give your employee a reasonable amount of notice. This lets them prepare and gather their own evidence in defence. Usually, this is about 3 to 5 days, but can be longer.
 

During the hearing

If possible, a disciplinary hearing should be undertaken by someone not involved with the initial investigation. This prevents any prejudice during the hearing, or when deciding on disciplinary action.

Make sure you invite a note-taker to record the hearing.

At the start of the meeting, you should set out the allegations and present all evidence.

Your employee then has a right to respond. During this time, they can present their own evidence. They can also show supporting documents that underpin their claims and dispute your allegations.

So, for instance, an employee accused of misconduct might show emails from very satisfied clients. In a sense, these supporting documents act as the employee’s character witnesses.

You’ll then be able to question the employee. And they can question you.

This is where many hearings can get heated. Remain cool and professional, as any outburst might be used by the employee to show the disciplinary process was flawed or biased.  

Employees are also legally allowed to bring along a companion. In most cases, this will be a work colleague or union representative. However, at your discretion, you could allow others, such as a carer or translator, depending on your employee’s needs.

You wouldn’t usually permit the employee to bring legal representation at this stage.

The companion or representative can:

• State the employee’s defence at the start and sum up at the end of the hearing
• Respond on behalf of the employee
• Privately discuss the matter with the employee
• Make notes

Unless you allow it, a companion cannot answer questions put to the employee.

If your employee decides to accept the case against them, they’re entitled to make a statement of mitigation. For instance, they agree they can’t perform a specific part of the job, but they state you never offered training to do it.

At the end of the hearing, explain the next steps in the process.

Don’t jump straight to decisions and disciplinary action. Instead, you’ll want to review the evidence, investigate any disputes, and potentially decide upon disciplinary action.
 

After the disciplinary hearing

Once the meeting’s wrapped up, be sure to send an accurate copy of the meeting notes to the employee.
You should then turn your attention to what to do next. Whatever you decide, the employee must be notified in writing, and offered the right to an appeal.

It might be that you accept the employee’s evidence and end the procedure. This is usually when an honest mistake has been made.

If you do decide to take disciplinary action, you will either:

• Give the employee a formal warning
• Suspend or demote them
• End the process
• Dismiss the employee

Make sure your decision is fair and proportionate.

If an employee believes the ‘punishment’ doesn’t fit the ‘crime’, they’re entitled to take the matter further.
You might also consider discussing possible action with a legal expert to make sure you get it right. The last thing any business wants is an unfair dismissal claim to end up in court.

Your employee is also legally allowed to appeal your decision. They may do this if they believe:

• The process was against company procedure or the ACAS Code of Practice
• Decisions have been made without evidence
• The decision is unfair or disproportionate
• They can offer more evidence or supporting documents

You should advise them to lodge any appeal as soon as possible.
 

After an employee’s disciplinary appeal

Should the employee’s appeal succeed, they may be able to return to work. You might also decide to change any action.

However, if the appeal fails, it’s possible they’ll take the case to an employment tribunal. At this stage, you should get legal advice.  

An employment solicitor will be able to guide you through the process and prepare for the tribunal, as well as help mediate a solution between you and your employee.

Use The Law Superstore’s quick quote form to compare solicitors who can help you resolve employment matters.