Disciplinary hearings are often a difficult area for employers.

Despite the wealth of evidence against an employee,

if a fair process is not followed it leaves the employer open to the risk of a claim for unfair dismissal.

The Acas Code of Practice on Disciplinary and Grievance Procedures is an essential read for any business owner,
manager or HR professional dealing with disciplinary hearings. The Code gives guidance on carrying out a fair
procedure for misconduct and poor performance. If an employer unreasonably fails to comply with the Code, then
this may result in the dismissal being unfair and an increase of up to 25% on any compensation awarded.

If your company has an internal disciplinary policy then you should make sure you follow this when holding a
disciplinary hearing as well.

When to arrange a disciplinary hearing

If, following an investigation, an employer decides that there is a disciplinary case for an employee to answer, a
disciplinary hearing should be arranged. It is important that the employee is given the chance to put his or her case
forward in response to the allegations, and that a fair process is followed when preparing for, and conducting, the
disciplinary hearing.

Key steps during a disciplinary hearing

Even for the most seasoned HR professional, conducting a disciplinary hearing can be a nerve-racking process, so
we have set out below our key steps for conducting a fair disciplinary hearing.

Before the disciplinary hearing

 You must formally invite the employee to the disciplinary hearing. You should make sure there is sufficient
time between sending the invite letter and holding the meeting. The employee should be given a
reasonable period of time to consider the allegations and evidence and to prepare their case for the
meeting.
 The invite letter must include the details of the allegations and all the evidence you intend to reply on. If a
possible outcome is dismissal, then this must be made clear.
 You should inform the employee of their right to be accompanied to the meeting by a trade union
representative or a fellow worker.
 If the employee is disabled, you should check whether any reasonable adjustments need to be made to the
arrangements.

During the disciplinary hearing

 The disciplinary hearing should be held at a reasonable time and place, in a private meeting room during
the employee’s normal working hours.
 The hearing should be held by a manager who has not been previously materially involved in the matter
e.g. by being the investigator or a witness. This can be difficult in a small organisation; therefore you may
wish to bring in an external HR consultant to conduct the investigation. Burnetts can offer the services of
our 2 highly trained, expert HR Consultants to conduct such investigations, draft paperwork or assist at
any disciplinary hearings.
 There should be a note taker who has not been involved in the process previously.
 At the start of the disciplinary hearing, the manager should introduce everyone present; explain the
allegations against the employee and the purpose of the hearing. The employee should again be reminded
of their right to be accompanied if they have attended unaccompanied.
  The employee should then be given the opportunity to make any response to the allegations, ask questions
and discuss any documentary evidence.
 If the employee has a representative at the meeting, be aware that they can make statements and ask
questions on the employee’s behalf but cannot answer questions that are put to the employee directly.
 Disciplinary hearings can be stressful for employees and witnesses. The manager should be mindful of this
and, if necessary, allow for short breaks.
 At the end of the meeting, the manager should check if the employee wants to say anything further before
the manager considers everything and makes their decision.

After the disciplinary hearing

 The disciplinary hearing should be adjourned for a decision to be made. It is good practice to adjourn the
hearing to take time to consider all the evidence. If a decision is given at the end of the meeting, without a
break, then it could be viewed as having been pre-judged.
 If new evidence or issues have been raised, further investigation may be needed before a decision can be
reached.
 Once the decision has been reached, the disciplinary hearing may be reconvened to give the decision to
the employee. This may not always be appropriate, depending on the circumstances. The decision must
always be given in writing along with instructions on how to appeal the decision.
 If an appeal is submitted, then this must be dealt with by an individual who has not already been involved
in the investigation or disciplinary hearing.

By their nature disciplinary hearings are stressful, not only for the employee but for the decision maker. These keys
steps will help you to follow a fair process and minimise the risk of a claim.
Again, I would draw your attention to the ACAS Code of Practice on Disciplinary and Grievance
Procedures which sets out the requirements for a fair disciplinary procedure remind you that failure to
follow this code can make an otherwise fair dismissal unfair and even increase any award at tribunal
if the tribunal considers it is ‘just and equitable in all the circumstances to do so.’
So, what do you actually need to do and say within a disciplinary hearing?
Here’s my step by step guide
1. The disciplining officer is appointed. They must be someone who has had no involvement in the
incident so far. The investigating officer hands over to them their report of the investigation and their
recommendations.
2. A letter is sent to the employee to invite them to the hearing. This letter will:

 Provide the employee with full details of the allegations made

 Provide copies of relevant statements and paperwork
 Advise the date, time and place of meeting
 Advise statutory right of accompaniment – colleague or trade union representative.
 Give a minimum 1-3 days’ notice of the meeting dependant on complexities to allow the
employee chance to prepare
 Say who else will be present at the hearing.
 State possible outcomes if disciplinary action is taken.
 State how the employee should contact the disciplinary manager to confirm attendance and
whether or not they will be bringing a companion with them.

3. The disciplinary officer should prepare questions in advance of the hearing and ensure that they
have a complete pack of all the notes and letters related to the investigation. They should also review
the file of the employee to see if there are any live cautions on file for similar types of incidents
4. At the hearing itself, the disciplinary officer should welcome and introduce all parties and their
roles within the meeting (if the employee brings a companion, please see guidance at the end) then
proceed as indicated below

 If the employee does not have a companion with them, the disciplinary officer should ask them
if they are happy to proceed without and this should be documented within the minutes.
 Read the allegation out exactly as it appears on the letter of invitation to the hearing and
explain that they are here to discuss the allegation; listen to the employee’s response and
decide what, if any action under the Company’s Disciplinary Policy is appropriate.
 Ask the employee if there are any accounts/statements included in the invitation pack that they
disagree with. If there are, ask why they disagree.
 Ask the employee to recall in their own words what happened on the day
 Explain the seriousness of their alleged behaviour (safety, legal, etc.) and ask if they
understand.
 If there is a history of similar behaviour, ask why there has been a repeat/failure to maintain
expected behaviour.
 Ask the employee if they have any mitigating circumstances for their alleged behaviour that
they would like taken into consideration.
 Ask if the employee has any final comments before the disciplinary officer adjourns to make
their decision.
 Explain that the meeting will adjourn in order for the disciplining manager to make their
decision.
 Adjourn the meeting and note the time of adjournment.
5. The hearing must be conducted in good faith, having regard to the principles of natural justice
i.e. the outcome must not be prejudged or biased
6. Where there is no action to be taken this will be explained to the employee and this followed up
in writing.
Note – If the employee is being accompanied it must be an individual who is either a fellow employee,
a trade union representative or an official employed by a trade union. The companion is permitted to
put the employee’s case, sum up that case, respond on the employee’s behalf to any view expressed
at the hearing and to confer with the employee during the hearing. However, the companion has no
right to answer questions on the employee’s behalf, nor to address the hearing if the employee
indicates at it that he or she does not wish the companion to do so. If the companion is not available
at the original date you should rearrange to another time that falls within a period of five working days
of the original date
7. Where there is a disciplinary sanction to be given, the disciplinary officer should decide upon
appropriate sanction (after an adjournment to consider the facts). Sanctions include a Written Warning
(normally 6 to 12 months validity), a Final Written Warning (normally 12 months validity) or dismissal
(with or without notice depending if gross misconduct or not). Demotion and loss of pay may also be
considered. This will be confirmed in writing.
8. Finally the employee must be advised of their right of appeal against the decision and how that
must be done (Five working days from receipt of the outcome letter for instance).