Employment Law Solicitors answer employees’ questions around how to deal with disciplinary hearings.
If you have been invited to a disciplinary hearing or meeting, it is likely that your employer is concerned about your conduct, capability, sickness record or any other reason affecting your work. Your employer should have carried out a thorough, fact-finding investigation first where you have had the opportunity to put your case forward.
Only if your defence is rejected, altogether or in-part, should a disciplinary hearing be called to discuss your employer’s allegations or concerns. Your employer should provide any supporting evidence that it has against you prior to this hearing/meeting.
Wherever possible, different people should deal with the investigation, disciplinary meeting and appeal to ensure that each stage is carried out as fairly and as independently as possible. This would be expected of a larger employer who has more resources. In the case of a small employer, this may not always be possible.
The individual(s) dealing with the investigatory, disciplinary or appeal meeting should be impartial and the person hearing the appeal should be the most senior.
Yes. Your employer’s disciplinary procedures must follow the ACAS Code of Practice on Disciplinary and Grievance Procedures and the accompanying Guidance which can be found here.
You will need to obtain a copy of your employer’s disciplinary procedure which you should find in your staff handbook. Read this carefully and make sure that you employer is following its own policy and that this adheres to the ACAS Code and Guidance.
Your employer’s failure to follow the ACAS Code could mean that, if you win your case, any compensation awarded could be increased by up to 25%. Similarly, if you fail to follow the ACAS Code, any compensation you receive may be reduced by up to 25%.
The Acas Code is there to help parties deal with disciplinary and grievance situations fairly and consistently and to set basic minimum standards.
It is common practice for employers to suspend employees pending the outcome of an investigation. This is often a knee-jerk reaction and, in some cases, entirely inappropriate. Suspension should only be carried out where this is necessary for your employer to properly investigate the allegations. Check your employment contract or staff handbook which should set-out your rights in this regard. You will always be entitled to full pay unless, during this period, you go off on sick leave and are not entitled to full pay.
Suspension should only last for the time necessary to properly investigate in order to decide whether to proceed to a disciplinary hearing/meeting.
Preparing for a disciplinary hearing can be daunting and it is vital to prepare your defence and paperwork. An at-a-glance chronology of events is always useful where facts are in dispute or the issues have arisen over a long period of time.
You should have received a letter that sets out the allegations against you. If you have not received a specific outline of what allegations have been made and what the likely disciplinary outcome will be, ask for this and any supporting evidence.
Gather any relevant documents, emails, GP records etc that support your case.
Consider whether there are any witnesses you require your employer to take statements from, particularly if you have been asked not to contact anyone. You may wish to ask for these witnesses to attend your hearing.
You may find it useful to prepare a statement that covers everything you want to say and hand this in. This would ensure there is no doubt about what defence you are raising, particularly if you are concerned about accurate note-taking at the hearing.
You should be given a reasonable amount of time to prepare for the hearing. This is normally 3-5 days. If you need more time, ask for it, particularly if you have not seen the evidence against you or have not been given a letter setting out the allegations.
It is unlikely that your employer will agree to recording your hearing unless you have a physical or mental impairment that makes it difficult to take notes or if you are prepared to pay for this to be transcribed. If you are planning on recording a meeting, you should ask for permission to do so.
If you have already recorded a hearing without permission, we would have to ask the Judge to agree to this evidence being admissible.
If the content is relevant to the case, a transcript or full-recording is usually considered by the court or tribunal.
Disciplinary hearings can be complex so there should be a note-taker present to record what’s being said. After the meeting, ask for a copy of the notes to be typed-up and for a copy to be sent to you. Go through the transcript carefully and if anything is not right or something important has been left out, amend the transcript to reflect your recollection. The aim is for the parties to try to agree a set of notes that both feel is an accurate reflection of the meeting.
Yes. You have a statutory right to take a trade union representative or colleague to the hearing with you. If you can’t find anyone to attend with you, ask your employer if a friend or relative can attend. Your employer does not have to agree to this unless you have a physical or mental impairment which would benefit from this being a reasonable adjustment in order to provide a level playing field. For example, to help you if you suffer from anxiety.
No. You do not usually have the right to be legally represented at the hearing. A disciplinary hearing is an internal process and it would be unusual for an employer to agree to this. The only exceptions are where the outcome of the hearing would result in you losing, not only your job, but your ability to ever work in this field again.
You should do your best to attend your disciplinary hearing but if you feel too ill or your chosen representative cannot attend, notify your employer and request that it is postponed. Your employer will then convene another meeting. If the location is unsuitable due to distance or the stress of returning to your place of employment, ask for it to be moved to a closer location or that it takes place off-premises. Again, reasonable adjustments are a legal requirement if you have a disability as defined by the Equality Act.
If you repeatedly fail to attend your hearing, a decision could be made in your absence without you having the chance to put forward your case.
After the meeting, your employer will need to consider all of the evidence and will decide whether further investigations are necessary. If this is the case, the decision will be postponed. You should be provided with the disciplinary outcome, in writing, without unreasonable delay. This will set-out their disciplinary decision. This may take the form of an informal or written warning or a demotion or even dismissal, with or without notice. Your employer may also decide that the disciplinary allegations are not upheld and no further action is necessary.
If you feel that the sanction imposed is disproportionate, or it has not been applied fairly, within “a reasonable range of responses”, seek legal advice as soon as possible. You must appeal or, if you do not want to be reinstated, raise a grievance.
You have the right to appeal against your employer’s decision and should do so if you believe their decision is perverse or wrong. However, if the decision is overturned, you would be reinstated.
You do not have to appeal but, if you fail to appeal in circumstances when it is considered reasonable to do so, any compensation could be reduced by up to 25%.
Appealing is often a tactical decision so it is recommended that you seek legal advice before doing so. In cases where you have been discriminated against or the investigation against you has been poorly handled, so that trust and confidence had completely broken down, grieving might be the better option.
You need to check your employer’s disciplinary and grievance policies because some employers prohibit this. The ACAS Code and Guidance advises that it is best practice to hear any grievance first, before proceeding to a disciplinary hearing/meeting. Alternatively, your employer may run both processes alongside each other, especially if the issues are interlinked.
If you do not want to go through the disciplinary process, then ask your employer if they are willing to enter into a Settlement Agreement discussion.
Any termination package should consist of your salary and contractual benefits to the termination date, accrued holiday and any bonus or share options due, together with a payment in lieu of notice. You may have to raise a formal grievance to demonstrate to your employer that you have a strong legal case against them, if they continue with the disciplinary process.
It is standard practice to agree to a reference in these circumstances and to annex a copy to the Settlement Agreement.
In most cases, no. Your employer may still proceed with the disciplinary in your absence. You could offer this as an option to your employer, particularly where you are fearful of being dismissed for gross misconduct. We would not advise anyone to resign where there is pressure from the employer to resign, without us assessing your case. Resigning in the face of your employer’s breaches to bring a constructive unfair dismissal claim may not be the best way forward.
There are also many other things to consider, such as whether a resignation may affect any insurance policies that you have or prevent you from seeking unemployment benefits.
No. This is a common misconception. Acas Early Conciliation is now mandatory. It is imperative that you do not miss the deadline for submitting a claim to the employment tribunal, irrespective of whether your appeal has been dealt with.