Disciplinary Training Preparing for and conducting disciplinary hearings & appeals

Aims and Objectives Consideration of employment rights Consideration of misconduct v gross misconduct How to investigate suspected gross or other misconduct How to conduct a disciplinary hearing The right to appeal Consideration of possible legal claims

Employment Rights Employees get full employment rights after 2 years’ service Only those with full employment rights follow the disciplinary procedure Those with less than 2 years’ service would be called to an employment review Furthermore, those with less than 2 years service cannot claim unfair or constructive dismissal in an employment tribunal, they may however claim discrimination on the basis of one of the protected characteristics

Misconduct Misconduct occurs when an employee breaches the terms of their contract of Employment The contract of Employment is made up of their individual terms and conditions and the Employee Handbook All employees are issued with their contract of Employment prior to their first day of employment Agency workers do not have a contract of Employment with us and their contract is held with the agency

Gross Misconduct Gross misconduct is a serious breach of the contract of Employment A list of categories of gross misconduct can be found in the Employee Handbook and include but are not limited to: Unfit through drinks or drugs Theft Physical violence or threats thereof Serious bullying or harassment Deliberate damage to property Bringing the employer into disrepute Serious infringement of health and safety rules Unauthorised absence Leaving work without permission

Activity Time! Misconduct or Gross Misconduct?

Right to Investigation Any misconduct, gross or other, needs to be investigated in order to establish the facts of the case In cases of misconduct, the investigation would form as part of the disciplinary / employment review hearing Investigation prior to the hearing may include the return to work interview, timekeeping records, quality records, witness statements In cases of potential gross misconduct, and where the employee has full employment rights, it will be necessary to hold an investigation meeting prior to a disciplinary hearing to establish whether the Investigating Officer (IO) believes gross misconduct to have occurred

Investigating Gross Misconduct The investigation would be chaired by an Investigating Officer and somebody from the HR department The Investigating Officer should not be junior or peer of the person being investigated and should not be a witness to the allegations The types of evidence they may collate could include: Investigation meeting Witness statements CCTV evidence Company records and documentation IT system records Social networking sites or other media Other types may include drugs and alcohol test results

Further Guide to Investigations Employees should be given a minimum of 24 hours notice prior to an invite to formal investigation meeting to allow time to prepare their case Other evidence should be collected prior to the investigation meeting with the employee and forwarded to employee to help them prepare If the employee brings further evidence (e.g. a new witness) to the investigation then this must be looked into after the meeting prior to making a decision The outcome of the investigation should be confirmed in writing to the employee along with notes of the meeting and any further investigations

Conducting a Formal Investigation Ensure you introduce all present and outline everyone’s role in the meeting Carefully set out allegations against the employee that you intend to investigate in the meeting Ask the employee to give a full explanation of their version of events by answering specific, open questions Where appropriate, check out the employee’s understanding of company policies and procedures. Keep an open mind and consider only the facts, do not get into an argument with the employee Do not give an outcome of your decision in the meeting and adjourn to consider all the facts On conclusion of the investigation, all evidence to be passed to the Disciplinary Hearing Officer and the investigator should play no further part in the process

The Disciplinary Hearing Officer The Disciplinary Hearing Officer should have had no prior involvement in the case and should be more senior than the employee who is subject to potential disciplinary action

Stages of Disciplinary

The Evidence Review Whilst the Investigating Officer may have an opinion that further action is required, the DHO must conduct a thorough review of the evidence collated before deciding whether disciplinary action would be appropriate, including: Ensuring the employee has had opportunity to provide their version of events Ensuring the relevant organisational policies, procedures and other documentation have been reviewed Identify any gaps in evidence and instruct the IO to conduct further where necessary Consider the next course of action, such as formal disciplinary, informal warning or further training or support for the employee

Drafting and Issuing the Letter The employee should always be given a formal letter inviting to a disciplinary or employment review with at least 24 hours notice The hearing should be arranged during the employees normal working hours and should consider their fitness or availability according to pre-booked holiday or any sick notes received The letter should contain the following information: The date and time of the disciplinary hearing The venue of the disciplinary hearing Details of the minute taker at the hearing A detailed explanation of the allegation(s) against the employee An explanation of the employee statutory right to be accompanied A list of evidence that the DHO will consider during the hearing Where dismissal is a likely outcome of the meeting, the letter should include a warning of this potential outcome

The Right to Accompaniment All employees have a statutory right to be accompanied to a disciplinary hearing, employment review or formal probation review (Employment Relations Act 1999) The employee may be accompanied by a work colleague or a trade union official Special circumstances will only apply in the following circumstances: Disabled employees have the right to reasonable adjustments and may be accompanied by an advocate, friend or family member Employees with limited English language may be accompanied by an official translator The companion is there to support and confer with the employee and may conclude the employees case however they may not answer on behalf of the employee If the companion is a work colleague from the same foreign country, they cannot translate for the employee

Conducting The Disciplinary Hearing The DHO will start by introducing all parties present and outlining their roles They should confirm that the employee has received the letter and all supporting documentation and check understanding of its contents If the person is alone, confirm the right to be accompanied Explain the purpose of the hearing is to consider all evidence and determine what disciplinary action, if any, is required Set out the allegations and present a summary of evidence to date Ask the employee for their explanation and clarify whether they accept or deny the allegations against them If you need to challenge the employee, do so politely using evidence collated, however accept that some evidence may not be accurate or factual Consider adjourning the hearing to conduct further investigation if the employee challenges the validity of the evidence

Concluding The Disciplinary Hearing Before concluding the hearing, ask whether are any other factors they want to make the DHO aware of Explain the meeting will be adjourned to allow the DHO to consider the evidence and make an appropriate decision Ensure that the employee is informed that no decisions have been made Close the disciplinary

Making the Decision Before making a decision, the DHO should consider the following: Whether the investigation has been as thorough as possible Whether the DHO fully understands all evidence and documentation Whether there are any mitigating circumstances that the DHO should take into account Whether they believe, objectively, that the allegations are substantiated What disciplinary action would be fair and reasonable to impose, if any

Formal Stages of Disciplinary Action Verbal Warning Written Warning Final Written Warning Dismissal All stages of warning will have an expiration which will be stated on the outcome letter

Employment Review Action Employees with less than 2 years’ service are not entitled to any stages of warning and may be dismissed without warning, however in the interest of fairness, informal written warnings may be given which we refer to as verbal reprimand or last chance warning

Considering Levels of Warnings The DHO should consider what informal / formal warnings are on file They should also consider the level of seriousness of misconduct In cases of gross misconduct, the outcome should always be summary dismissal

Dismissal Where dismissal is the chosen outcome, the employee should be informed of their notice and whether they are required to work The notice period will be one week per full year of employment up to 12 years’ service If the employee is not required to work, they should still be paid their notice at their standard rate If the employee is required to work their notice and they choose not to, they are not entitled to be paid Where summary dismissal for gross misconduct is the outcome, the employee will not be entitled to any notice, regardless of their service As with any termination of employment, they will be paid any outstanding holiday entitlement

Possible Legal Claims Unfair Dismissal Wrongful Dismissal Discrimination

Confirming the Decision in Writing The outcome letter should summarise the following: A summary of the discussion and any other issues such as mitigating factors that the DHO took into account Confirmation of the decision itself If not dismissal, an explanation of the consequences of further misconduct An explanation of the appeal process

Activity Time! Disciplinary Role Play

Right to Appeal All employees will be given the right to appeal against any formal decision as per the ACAS code and will be given 7 days from receipt of their formal warning / dismissal to appeal in writing which is explained in their formal letter confirming the disciplinary warning This right given regardless of whether the employee is able to produce further evidence The employee will also have the right to be accompanied at the appeal hearing, the same rule applies The hearing should also be introduced and concluded in a similar manner as the disciplinary hearing The appeal hearing is an opportunity for the employee to present their reasoning for appeal

The Disciplinary Appeal Hearing Officer The DAHO should be somebody not previously involved in the allegation and should be somebody more senior than the DHO, if not possible then somebody on the same level They should read all witness notes to date ahead of the hearing and have these available during the meeting to refer to if necessary The DAHO should be prepared to challenge the employee politely and ensure they avoid getting into a debate or argument

Conducting The Appeal Hearing Prior to the meeting, the DAHO will need to read all evidence collected during the investigation, minutes of the investigation and disciplinary hearing and the employee’s letter of appeal including any supporting documentation Follow the same structure as the investigation and disciplinary hearings by explaining the purpose of the meeting and introduce those present Ask the employee to explain why they are appealing Pay attention to all evidence, particularly anything new that might be introduced Adjourn the hearing to consider the evidence and reach a decision

Appeal Hearing v Disciplinary Re Hearing Sometimes it may be necessary to re-hear a disciplinary completely if it is felt the hearing was not done properly or investigations not fair and/or thorough enough the first time In this instance, the appeal hearing would be carried out in the same way as the disciplinary and a fresh decision would be made

Possible Outcomes of the Appeal Hearing Confirm the original decision Uphold the decision but change the basis on which made Change the disciplinary outcome by either reducing severity or overturning completely Reinstate a dismissed employee

Concluding the Appeal Process The DAHO must confirm the outcome of the appeal and reasons in writing including minutes of the meeting and any further evidence The appeal is the final stage in the disciplinary process and the employee has no further right to appeal, this must be confirmed to the employee as part of the outcome letter

Summary Consideration of employment rights Consideration of misconduct v gross misconduct How to conduct a disciplinary hearing The right to appeal Consideration of possible legal claims