Making sure the disciplinary process is fair

It is important to carry out necessary investigations of potential disciplinary matters promptly to establish the facts of the case. In some cases this will require an investigatory meeting to be held with the employee before proceeding to a disciplinary hearing. In others, the investigatory stage will be the collation of evidence by the employer for use at a disciplinary hearing.

Any investigatory meeting should be conducted by a management representative and should be confined to establishing the facts of the case. It is important that disciplinary action is not considered at an investigatory meeting. If it becomes apparent that formal disciplinary action may be needed then this should be dealt with at a formal meeting at which the employee will have the statutory right to be accompanied.

At the end of this stage you will have three options: 

1 no case to answer – drop the matter

2 a case to answer but not serious enough to warrant disciplinary action – arrange counselling or an ‘informal meeting’, this is not part of a formal disciplinary procedure and it should be made clear that it is not

3 the case is serious enough to be classed as a disciplinary offence – arrange a formal disciplinary meeting or hearing.

Preparing for a disciplinary hearing

The hearing allows you to put the allegations to the employee and enable him/her to state their case. Ensure that all the facts have been gathered, that you have familiarised yourself with them and you have examined the employee’s disciplinary record. Then find out if there are any special circumstances which need to be taken into account, e.g. personal issues which may be affecting the employee’s conduct.

Gather written statements from any witnesses and inform the employee in good time and in writing, of the date and time of the meeting and the exact nature of the disciplinary matters that are to be investigated. It is good practice to forward the evidence, so he or she has time to read it before the hearing.

You should try to:

• encourage the employee to talk freely with a view to establishing the facts

• ensure that the disciplinary meeting is a two-way process

• adjourn the meeting before making a decision to allow discussions on the evidence and action to be taken

• ensure there is a genuine discussion and review of the evidence rather than a token adjournment to cover up a snap decision

• if facts are in dispute decide on the basis of probabilities which version is most likely to be true

• use questions to clarify all the issues and to check that what has been said is understood

• stay calm and professional – you are simply trying to discover the truth so the process should not be one of conflict

• arrange for written confirmation of the decision to be sent to the employee and to be placed on their personal file: the employee should always be informed orally as soon as possible

• monitor and review, deciding on what disciplinary action to take.

Right to be accompanied

Section 10 of the Employment Relations Act 1999 provides that any worker attending a disciplinary hearing has the right to be accompanied. It applies specifically to hearings that could result in:

the administration of a formal warning to a worker by the employer, or taking another action in respect of a worker by the employer, or confirmation of a warning issued.

The companion may be a fellow worker, an official employed by a

trade union or a workplace trade union representative who has been certified by the union as being competent to attend disciplinary hearings. If the chosen companion falls under this statutory guidance, the employee has the absolute right to choose their companion.

In some instances employees may have contractual rights to be accompanied by a spouse, partner or legal representative. If the employee’s chosen companion is not available at the time proposed for the hearing, the employee may propose another time.

If the alternative time is reasonable and falls within five working days after the date proposed by the company, the company must postpone the hearing until that time. If the outcome of the disciplinary hearing could be career-ending rather than just job-ending, then an employee may have the right to legal representation even if it is not a contractual right. This will depend on circumstances and at what stage the decision to bar the employee from practising their career is taken. There is unlikely to be a right to legal representation where proceedings are completely separate, but where a decision in one set of proceedings determines the outcome in a later hearing which could deprive someone of their right to practise their profession then the right to legal representation would begin at the first hearing.

Under the Employment Relations Act 2004, companions are entitled to put forward and sum up the worker’s case, respond on behalf of the worker to any views expressed at the meeting and confer with the worker during the hearing, if the worker wishes it. This effectively means the companion may represent the worker. However, this right does not apply if the employer has reason to think the worker does not want the companion to act as a representative or if the employer reasonably feels the companion will disrupt the hearing.