Misconduct at work? A brief guide to disciplinary hearings

What is a disciplinary procedure and what is its main objective?

A disciplinary procedure is a formal process enabling an employer to deal with issues of an employee’s improper or unacceptable behaviour (e.g., misconduct).

The main objective of initiating disciplinary proceedings is to encourage employees to meet the standards expected of them with regards to their performance, but also to ensure that they adhere to all rules and regulations set within their place of employment.

Disciplinary procedures are also used as a way to collaborate with employees, encouraging them to ensure that they continually meet the standards set. The process additionally gives employees an opportunity to explain their side of the story and account for their actions.

Most employers will have their own procedure that will generally allow for both informal and formal procedures. Disciplinary procedures are generally contained in the Staff Handbook and or in employees’ contracts of employment.

Before a disciplinary procedure is initiated, employers should initially see if the problem can be resolved in an informal way. This can often be less time-consuming and the easiest option. The end results can vary depending on the extremity of the misconduct. They can range from an informal discussion coupled with a verbal warning to more formal proceedings resulting in, depending on the situation, the dismissal of the employee.

Employers - always ensure that you keep written notes of any informal misconduct discussion with staff – even if it is a note in your diary!

What behaviour can warrant disciplinary proceedings?

The behaviour displayed by the employee must amount to breaking the workplace rules. Any concerns regarding the capability of the employee can still be conducted through a disciplinary procedure, but this must be done in a fair and reasonable way.

This blog will focus on misconduct in relation to disciplinary hearings, however sometimes an employee’s behaviour can amount to gross misconduct.

Gross Misconduct

Gross misconduct are acts which are considered serious enough to destroy the working relationship. Where an employee’s actions are deemed to constitute gross misconduct, the employee can be dismissed immediately as long as a fair and reasonable procedure is followed. Incidents that can amount to gross misconduct include:

• Theft

• Physical violence

• Gross negligence

• Serious insubordination

Misconduct

The difference between gross misconduct and ordinary misconduct, is that ordinary misconduct will not amount to immediate employee dismissal. Behaviour that can amount to misconduct can include but is not limited to:

• Bullying

• Harassment

• Insubordination

• Being absent without permission

• Persistent lateness

• Email, internet, or social media misuse

The disciplinary procedure:

Employers should not take any disciplinary action before meeting and discussing the issue with the employee first. It is also recommended that employers follow the ACAS code of practice when starting disciplinary procedures. This code is issued under section 199 of the Trade Union and Labour Regulations (consolidation) Act 1992. It sets out the basic requirements of fairness that will be applicable and is intended to provide the standard of reasonable behaviour in most instances. If the case goes to the Employment Tribunal (ET) and the employee wins an employment tribunal they will receive a larger pay-out if the ACAS code is not followed.

To ensure that the disciplinary procedure is conducted in a fair and reasonable manner:

• The alleged misconduct needs to be raised with the employee and dealt with promptly. There should be no unreasonable delays.

• Employers should conduct the investigation required to obtain the evidence fairly.

• Employers should allow employees to be accompanied to any formal disciplinary meeting.

• Employees should have the opportunity to put forward their case in response and given the right to appeal any decision(s) made.

A formal disciplinary process usually involves the following stages:

Stage 1

Employee is notified of the investigation

This is usually done by a letter from the employer to the employee setting out the allegations, informing the employee that the employer intends to carry out an investigation and setting out details of the proposed investigation including the name of the investigator.

Stage 2

The Investigation (including consideration of suspension pending the investigation and disciplinary hearing).

Where there is an allegation of misconduct there is usually an investigation into the allegations. This investigation is the fact-finding aspect of the disciplinary process. The aim of any investigation is to decide whether on the balance of probabilities the employee has a case to answer. It is essential that the investigation is balanced and fair. It should not be a “witch-hunt” purely aimed at finding the employee guilty.

Stage 3

Invitation to a disciplinary hearing.

After the investigation, if there is a case to answer the employer will send another letter to the employee inviting them to a disciplinary hearing. The letter should cover:

• The allegations of misconduct allegations.

• Information about the disciplinary hearing.

• The employee’s rights to have a companion at the hearing.

• Potential sanctions that could arise if it is found that misconduct has occurred.

The employee will also be given the Investigation report and other relevant documents prior to the disciplinary hearing.

Stage 4

The disciplinary hearing

The disciplinary hearing should be conducted as soon as possible after the investigation has been completed, but the employee should also be given reasonable time to prepare. At the hearing, the allegations and evidence would be put forward to the employee who will be given the opportunity to comment and ask questions on the allegations but also the opportunity to raise arguments in their defence which may lead to further investigations into the matter. The employer must also ensure that notes are taken at the hearing.

If the employee chooses to bring a companion to the hearing, the companion should have the ability to:

• Take notes.

• Respond on behalf of the employee if necessary.

• Sum up the employee’s case.

At the end of the hearing the employer should explain to the employee the next steps and timeframe for the decision.

Stage 5

The disciplinary outcome.

The purpose of a disciplinary procedure is to regulate employees’ standards of conduct in the workplace and ensure that all breaches of the rules are dealt with fairly and consistently. The decision to be made at the disciplinary hearing is whether or not any disciplinary action is justified.

The potential outcomes available would include :

• No action.

• A verbal warning.

• A written warning.

• A final written warning.

• Dismissal with notice.

• Summary dismissal (where it is a case of gross misconduct).

When arriving at the decision the employer must consider certain questions. For example:

• Whether the decision is fair and reasonable taking into account the evidence and what the employee has said?

• Whether there are mitigating circumstances?

• Whether the employer has dealt with cases of that nature before?

The Employer should inform the employee of the outcome in writing as well as the length of time for which a warning will last. For any decision made which does not result in the dismissal of the employee, it may be worth working with the employee to focus on standards of future behaviour and the type of conduct expected from the employee together with the timeframes in which the employee would be expected to improve their behaviour or meet certain targets. If the employee fails to meet these goals, the disciplinary procedure may continue until the required targets or improvements are made or until dismissal is the only feasible option.

The disciplinary outcome letter

The disciplinary outcome letter should include:

• A summary of the original allegations of misconduct

• A note of the employee’s responses to the allegations of misconduct

• A note of the employers’ considerations regarding the employee’s responses

• A statement of the employer’s decision

• A statement clarifying the employee’s and the employer’s next steps

• The employee’s right of appeal

Stage 6

The Appeal Process

The employer should always offer the employee the opportunity to appeal a decision. If this does not occur this can be used as a ground of appeal against the employer’s decision if the case ends in an employment tribunal.

An employee can appeal a decision if, for instance, they are of the opinion that the outcome is too severe, they have new evidence, or if they think that any part of the disciplinary procedure was unfair. The appeal should be sent in writing to the employer with the employee stating why they think the outcome was wrong. This should happen as soon as possible. ACAS recommends a period of at least five(5) working days for the employee to put in an appeal from the date of receipt of the disciplinary outcome, however, this is not binding and some employers may give a longer period.

The employer should always consider the employee’s appeal, conduct another investigation if new relevant evidence is presented and make a decision on the appeal. The appeal should be heard by someone who has not previously been involved in the employee’s disciplinary hearing or investigation process.

The outcome of the appeal will either be the dismissal of the appeal and confirmation of the original decision or the overturning of the previous decision taken at the disciplinary hearing. The appeal hearing is the final part of the disciplinary internal process.

The employer must always follow a fair process.

An employment law solicitor can advise and help parties prepare for a disciplinary hearing in addition to helping parties prepare their witness statements.

Currently, employees only have the legal right to bring a colleague or a trade union representative to a disciplinary hearing, but this may change in the future, as recent cases have indicated that employees may be allowed to be accompanied by a solicitor if the outcome could threaten the employees career. There have been a few cases where employers have allowed their employees to be accompanied by a solicitor but these instances are rare and are not the norm.

How can Pure Business Law help?

Pure Business Law are specialist Employment Solicitors based in Bedford and London and operating nationally. If you need advice on unfair dismissal and disciplinary hearings, please contact us and book a consultation with one of our expert Employment Law Solicitors.

If you would like to discuss anything raised in this article, please contact us and speak with one of our solicitors. Pure Business Law is regulated by the Solicitors Regulation Authority and is a licensed member of the Law Society of England & Wales.