Tom’s Essential Guide To A Disciplinary

Last update: 13th December 2021

If you face a disciplinary hearing, you are likely to find the experience stressful. This guide aims to assist you through the process.

If there are grounds to suspect you have done something wrong your employer is well within their rights to carry out a disciplinary hearing. How you prepare for it, and your conduct during it will determine not only how you come across, but also what may happen afterwards.

There will be a great deal to think about when preparing yourself. So, here Tom highlights things to watch out for, some ‘Essential For You To Know’ facts and common questions we are regularly asked by employees facing disciplinary procedures across the UK.

Facing a Disciplinary

What’s the first thing you should do when notified of a disciplinary?

In the first instance, you need to get hold of, read through and get familiar with the disciplinary procedure set out by your company. Although a disciplinary must be conducted for all incidents of misconduct (even those minor acts), it is important to keep in mind that a subsequent disciplinary sanction or even a dismissal are not necessarily going to be the outcome.

ESSENTIAL FOR YOU TO KNOW

It is a requirement under the ACAS Code of Practise on disciplinary and grievance procedures that all employers need to adhere to a ‘full and fair’ disciplinary procedure.

Failure to do so will be taken into mitigation by the judge (or judging panel) of an Employment Tribunal if you go on to advance a claim against them.

Where would I find my employer’s disciplinary procedure?

In most cases this can be found in your staff handbook. If you haven’t got a copy, you can request one from your HR department or employer directly. They are duty bound to provide this to you.

What to expect at the outset of the disciplinary process

This can depend on what allegation is being made against you. Most likely, your employer will begin by inviting you to attend an initial investigation hearing and they will give you prior warning.

Under some circumstances you employer may opt to conduct such a meeting quickly and inform you straight away that they are carrying out an investigatory meeting into the allegations made against you.

During such a meeting, your employer will no doubt ask you a series of questions in order to get your initial response to these allegations.

Please understand that you will not be entitled to any witnesses to support you during this investigatory meeting.

Can I be suspended following an investigatory meeting?

The short answer to this question is yes you can be suspended.

Dependant on the seriousness of the allegations you face, your employer is entitled to suspend you after you have been suspended. This can also happen beforehand in some cases.

Where you employer may do so, they will usually send a letter confirming your suspension (again, typically on full pay). Under these circumstances you would then await details from them as to when your disciplinary hearing is scheduled for.

Always keep in mind that your suspension is not necessarily an indication that your employer believes you to be guilty of those allegations made against you. As such, they are not required to provide you with much detail regarding your suspension.

Your suspension simply allows them to go about their day-to-day operations without concern that you may disrupt it. They are taking you out of the workplace whilst they make their investigations.

It is only when you are invited to your disciplinary meeting that you would then expect to receive more information as to what you have been accused of.

What information will I get ahead of my hearing?

When you are invited to attend your hearing, you should receive copies of all the documents or other evidence (for example, CCTV footage, witness statements etc) that your employer is relying upon. You are expected to receive this so you can understand in full what is being alleged against you.

If you feel there is additional information that you need to defend your position, this is the time to request it. At this stage if you also feel your employer should speak to any other witnesses ahead of your hearing, you should write to them requesting them to do so.

How much notice advanced notice should I get?

The amount of notice your employer will give you will largely depend on how complex the issues are that will discussed at your hearing. They are, however, required to give reasonable notice to you of when they have scheduled your disciplinary hearing for.

ESSENTIAL FOR YOU TO KNOW

It is your right to be able to make a proper defence of those allegations that you face at your hearing.

As a result of this, your employer is expected to allow you reasonable time to gather the evidence you need to be able to do so. For example, witness statements of your own.

So, if they only gave you 2 days notice that would not seem an appropriate amount of time to allow you to prepare adequately.

PLEASE NOTE: If you can justify needed more time to prepare than is offered to you, you should make a written request for a postponement to the date of your hearing.

Also, if you off work due to illness during the disciplinary process you can also request that your disciplinary hearing is postponed. This would similarly apply if there were reasons not in your control that made it impossible for you to attend on the given date.

Careful preparations of your defence against the allegations should be made ahead of your hearing to ensure you put your best foot forward.

Who can accompany me?

Although not typical, you can arrange for a witness to be present at your hearing. Where you want them to offer evidence in your defence, you should make your employer aware that they will be present in advance of the hearing.

You are also permitted to have a trade union representative or colleague accompany you at your hearing. But, it is essential you understand that they are not present to give evidence, or make arguments in your defence. They are merely present to keep a note of what is discussed at your disciplinary hearing.

ESSENTIAL FOR YOU TO KNOW

Whilst your employer (like many) may be accepting of having your disciplinary hearing recorded, you must NOT make a recording of it yourself without their prior permission.

Who will be attending my hearing?

This will depend on the size of the company. It could just be your manager and you, but it would not be uncommon for others to be present. For example:

  • An HR representative
  • Witnesses to the allegations or your defence witnesses
  • A union representative or colleague
  • Someone assigned to take notes

Can’t I have a lawyer with me?

A very common question.

The law states that an employee is entitled to have a trade union representative or colleague accompany them to a disciplinary hearing. This is covered under Section 10 of the Employment Relations Act 1999.

Under the law you have no statutory right for this to extend to legal representation.

How you conduct yourself is very important

You should keep in mind that you want the notes from your hearing to show that you behaved reasonably and did your best to assist your employer in the process. Telling the truth and cooperating with the disciplinary hearing are essential.

For example, if you later go on to make a claim for unfair dismissal at Employment Tribunal and you were found to be unreasonable or uncooperative during the disciplinary process, it would NOT be helpful to your case in the eyes of the judge.

If you are planning on advancing a claim, you should read our definitive guide to successfully pursuing a claim at Employment Tribunal.

Once your disciplinary hearing has been concluded, your employer will normally advise you that they need some time to consider their decision.

Whilst this is happening you should receive a copy of the minutes so that you can agree and approve them.

Where you feel that something important discussed does not appear in those minutes, you point this out politely. Give your employer your clearest recollection of what should have been included but was not.

Now is the time when your employer needs to come to their decision. They must decide if they find you guilty of the allegations made and as such what sanction/sanctions they should impose as a result.

What sanctions could I face?

If you are found guilty by your employer there are a variety of sanctions available to them. This will, of course, depend on the seriousness of your offence. They may include:

  • Issuing you with a first written warning
  • Going straight to a final written warning
  • Demoting you
  • Dismissing you

If, on the other hand, they decide they don’t have sufficient evidence to find you committed the alleged offence/offences, normally they will inform you that they don’t intend to take further action against you in this matter.

ESSENTIAL FOR YOU TO KNOW

It is still possible for your employer to find you guilty even where are not completely certain you committed the alleged offence.

They only need to be more likely than not, that you committed it on the balance of probability.

Where they have reached a reasonable conclusion of your guilt, it could prove difficult to challenge any decision they have made, as long as your disciplinary was carried out properly and their investigations were even-handed.

When giving you their decision, your employer is required to inform you that you have the right to appeal. In providing their conclusion, your employer should inform you that you have the right to appeal their decision. See my Essential Guide To The Appeal Process for more information.

If you need quick and definitive legal advice about a forthcoming hearing, or have had a disciplinary appeal overturned you can book a quick Talk to Tom telephone consultation.

If you want to advance a claim at Employment Tribunal

If you want to know if you have a viable claim to make at Employment Tribunal you can speak to one of our team today on 0800 014 8727 or 020 3923 0888. We will carry out a free assessment of your case and let you know your options. Alternatively, you can submit your information to us 24/7 by using our online enquiry form. In either case, once we have assessed your case, we will respond to you within 48 hours by phone, email or text.