Following on from our previous blog, the second instalment in our disciplinary series looks at the disciplinary hearing.

If, after a reasonable investigation, the employer takes the decision to proceed to a disciplinary hearing, the employee should be notified in writing of this. The notification should contain information about the time and venue of the formal meeting and advise the employee of their right to be accompanied. The letter is likely to state who will conduct the disciplinary hearing, and it should not be carried out by the same person who conducted the investigation, although this may be difficult in smaller organisations.

Disciplinary hearing

At the meeting the employer should go through the allegations and the evidence that has been gathered during the investigation. The employee should then be allowed to answer the allegations, have an opportunity to ask questions, present his or her own evidence for consideration and call witnesses. The employee should also be given an opportunity to ask questions of the witnesses who have provided statements. Where the employer or employee wishes to call witnesses then it is reasonable to give the other party advance notice of this.

It is important that the employer adjourns the hearing before a decision is made as this gives an opportunity to consider what has been discussed. It also allows for further checking on anything that has been raised that needs clarified.

The decision should be confirmed in writing as soon as the decision is made. The outcome letter should specify the nature of the misconduct, the disciplinary penalty and how long this will last, the improvement expected, the likely consequences of further misconduct and the time limit for lodging an appeal. In a case of dismissal, the decision should only be taken by a manager who has authority to do so. Where an employee is being dismissed for an act of gross misconduct, this should be clearly set out in the outcome letter as there will be normally be no entitlement to notice or pay in lieu of notice in those circumstances.

Appeal

The manager conducting the appeal should have access to the evidence compiled during the investigation and copies of the notes from the disciplinary meeting. However, he should not confer with the initial decision-maker prior to the appeal meeting as this may lead to a biased view being taken before the employee has presented his arguments on appeal. Employees have the same right to be accompanied at a disciplinary appeal as at an initial disciplinary meeting.

Following the appeal hearing, the decision should be communicated in writing to the employee. If the employee was dismissed at the disciplinary hearing and is reinstated on appeal, their employment will continue as though the dismissal had not occurred, i.e. there is no break in service.