Discipline and Grievanceby Kate Russell
Handling disciplinary interviews
Before the meeting, make sure that the employee and his companion are informed about the complaint and have copies of all the relevant documentation, such as witness statements. (See Request to attend disciplinary meeting letter (Word format))
If you produce items for the first time at the disciplinary hearing, it would be reasonable for the other party to ask for an adjournment while he considers the information.
A discipline officer who has not been involved with the investigation will hear the evidence. The investigating officer may be present but only to answer questions from the discipline officer, the employee or his representative.
The disciplinary hearing should be a discussion of the facts, not an argument about them. Try to discover whether there are any special circumstances that should be taken into account.
Examine the conduct or performance that is under discussion and explore the gap between the current level of performance/conduct and the required level. Where possible, reinforce your argument with some evidence to support your views.
Allow the employee to reply to the allegations.
Take representations from the companion, if he wishes to make them.
Once you have heard all the evidence, adjourn. Carefully consider and weigh the evidence before you decide on any disciplinary action. Ensure that your decision is in line with your policy and procedure and that it is consistent with previous similar situations.
Make sure you follow your procedure. Failure to do so, even if the employee makes an admission of misconduct, is likely to mean that a dismissal is unfair.
If you decide to issue some form of disciplinary penalty, confirm your decision in writing and tell the employee about the appeals process. They need to know how to appeal, to whom to appeal and the timescale within which they should submit the appeal.
If you decide to terminate employment make sure you tell the employee either face-to-face on the phone so that you have clarity about the termination date. If you write to terminate employment, the termination only take effect when the employee has read the letter. There could be a delay on termination of two to three weeks, which then has an impact on the limitation period.
Where appropriate, develop an action plan for improvement. Give a copy to the employee.
Where an employee has under two years’ service you can use a shorter discipline process. However, short service termination is “low risk”, not “no risk”, so always take the following minimal steps.
- Gather recent examples of concerns or matters complained of.
- Write to the employee to set out your concerns. Provide examples as evidence.
- If there are previous conversations you can refer to these and include copies of the notes taken.
- Offer the right to be accompanied by a work colleague or trade union representative.
- Allow time to prepare.
- Meet to discuss the matter and consider what the employee has to say.
- Adjourn to reflect and decide on the outcome.
- Announce the outcome.
- If there is a sanction including termination of employment offer the right of appeal.
- Write to confirm everything.
Disciplinary hearing checklist
- Introduce the parties, if they don’t know each other.
- Explain the roles of the parties.
- Ask the worker to confirm that he is ready to go ahead.
- If he is not accompanied, remind him of his right.
- Go through each matter, probing the worker’s answers.
- Give the worker a full opportunity to put his views.
- Ask the companion for his input.
- When you have reached the end of a particular point, summarise the points the employee has made. Ask him if he has anything else that he would like to tell you that he has not told and you, or you have not asked about.
- When you have finished exploring all the matters, ask the worker to confirm whether he feels he has had a fair hearing.
- Ask your note taker to go through all the notes with the worker and companion. Make any amendments there and then. Ask the worker to sign and date each page. Advise that you are happy to provide a copy.
- Adjourn to consider what has been said to you.
- Decide on your action and advise it to the worker.
- Confirm the decision in writing.
Employee’s failure to attend
Sometimes employees fail to attend a disciplinary hearing. There has been a noticeable trend in recent years for employees facing the disciplinary process to go sick with stress. If your employee doesn’t attend the hearing, either through sickness or for some other reason, write to him rescheduling the date for the meeting. Ask him to confirm his attendance. If he fails to attend the next meeting, write again, rescheduling the meeting. This time add that if he fails to attend on the third occasion you will proceed in his absence. Remind him that if he is unable to attend himself you will accept written representations from him or he may send his companion to speak on his behalf.
If he fails to attend without good reason on the third occasion, hold the disciplinary hearing in his absence and work with the information that you have available to you. Write to the employee, informing him of your decision and offering an appeal where a disciplinary penalty has been imposed.
However, to be procedurally fair, a disciplinary process will almost always require an employee faced with serious allegations to be given the chance to put his side of the case across before a decision is reached. This still applies even if the employer believes the employee is attempting to evade a disciplinary hearing by saying he is too stressed to attend. You have to exercise patience and a considered approach to ensure that such a dismissal is fair.
N was subject to disciplinary proceedings after a colleague made a written complaint about bullying behaviour. Following the complaint, N was absent from work and sent in doctor sick notes, citing stress and anxiety.
Over the following weeks, the employer corresponded with N in an attempt to set up a disciplinary hearing. Initially, she indicated that she would be well enough to attend a hearing after a few weeks, but dates arranged for a hearing were followed by sick notes from her doctor stating that she would be too ill to attend. As an alternative, the employer invited her to make written representations.
While this process was ongoing, N and her employer continued to negotiate the terms of a compromise agreement, which related to a separate issue predating the complaint. The employer also received information that although N was signed off with stress/anxiety, she had, in the intervening period, been offered a position with another employer, and was due to start there very shortly. The employer notified N that it would only postpone the disciplinary hearing by one more day. It concluded that despite the doctor’s sick notes, she was well enough to attend.
N requested another postponement, pointing out that she was due to see her doctor the following day. The employer refused and the hearing went ahead in her absence. She was subsequently dismissed for conduct reasons.
The EAT agreed that N had been unfairly dismissed. For a dismissal to be procedurally fair the employee must be given a chance to state his case. This is particularly so where they face serious accusations and the doctor has said they are unfit to attend – even if the employer receives information which causes it to doubt that the employee is genuinely too ill to attend.