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Disciplinary hearings
What to expect when you’re going through disciplinary processes at work
A good disciplinary procedure helps employees to follow the rules and allows employers to deal fairly with those who do not. But going through such a process is daunting, and this factsheet aims to set out the statutory minimum that you are entitled to expect of your employer’s procedure, along with details of what’s considered to be good practice in disciplinary hearings.
Statutory disciplinary procedures
Employers must follow the statutory procedures if they are contemplating dismissing an employee, or applying sanctions such as demotion, loss of seniority or loss of pay. Remember that these statutory procedures are only a minimum standard, and your contract of employment may contain a disciplinary procedure that’s superior to the statutory arrangements. If this is the case with your contract , your employer may be obliged to apply those higher standards to any disciplinary procedure taken in relation to you.
You have the right to be accompanied by a colleague or a trade union representative, at both the initial disciplinary hearing to discuss the allegations and the appeal meeting. While the choice of the accompanying person is up to you, you are not entitled to be accompanied by anyone other than a fellow worker or trade union official unless your contract or a general agreement allows it. Employers may allow you to be accompanied by a solicitor, but they are not legally bound to do so. If your employer does not allow anyone to accompany you, this could lead to a finding of “automatically unfair” dismissal at an eventual Employment Tribunal hearing.
The standard statutory procedure which applies in the vast majority of cases contains three main steps. These must be complied with.
- Step 1: the employer must write to the employee notifying them of what they are alleged to have done wrong, set out the basis for the allegations and invite them to a meeting to discuss the matter.
- Step 2: the employer must meet the employee to discuss the allegations. You are entitled to be accompanied at this meeting. Your employer is then required to notify you of the decision reached and your right to appeal against that decision.
- Step 3: if you wish to appeal the disciplinary decision you must notify your employer. In return your employer must invite you to a further meeting; you should take all reasonable steps to attend this meeting, and you may be accompanied. After this meeting your employer must inform you of the final decision.
There is also a modified dismissal procedure for certain cases, where an employee is dismissed without notice by reason of his or her conduct.
There are also a small number of cases where neither the standard or the modified statutory procedures apply, for instance when an employee is taking part in an unofficial strike or in unofficial industrial action at the time of the dismissal. These exceptions are all fairly technical, and unlikely to apply in the vast majority of cases.
Why is it important to comply with the statutory procedures?
A Tribunal will automatically find a dismissal unfair if the statutory procedure applies and has not been followed. Except in exceptional circumstances, it will also increase your compensation by 10-50% if your employer has not complied with these procedures. You also have a duty to participate in the procedure properly. So even if the Tribunal found you had been unfairly dismissed, but – for instance - you had failed to attend a disciplinary meeting without a good reason, your compensation could be reduced by 10 – 50%.
Time limits for bringing claims
If the statutory dismissal and disciplinary procedure applies in your case, you may benefit from a time extension in bringing your claim to the Tribunal. The normal limit is three months less one day from the act complained of. If you reasonably believe the procedure was being followed at the end of this time, a further three month and one day extension may be permitted.
Disciplinary hearings
ACAS has produced a guide entitled “Discipline and Grievance at work” which sets out good practice in dealing with a disciplinary hearing. This guidance is very detailed and is helpful in explaining what to expect when going through a disciplinary hearing/process. The following are the main points the guide covers:
Before the hearing
- Your employer should let you know the complaint that has been made against you, the disciplinary procedure to be followed and that you must attend a disciplinary hearing. Details of the date and time of the meeting should be provided as soon as possible.
- You should be told that you have the statutory right to be accompanied at the hearing (see above for details).
- There should be a reasonable time span between being told of the date of the hearing and the hearing taking place, to give you enough time to prepare your case. If you don’t get sufficient time, you should explain this to your employer (preferably in writing) and ask them to rearrange the hearing for a later date.
- To make the hearing as fair as possible you should generally be allowed to either call witnesses or submit witness statements in support of your case, if this is appropriate.
If you have special requirements – for example, if English is not your first language or you have a disability which may make participation at the hearing difficult – you may request relevant assistance. For instance, you can ask your employer for a translator or sign language interpreter to be present at the hearing.
At the hearing
- The hearing should be a two-way process.
- Your employer should introduce those present, explain the purpose of the hearing to you and explain how the hearing will be conducted.
- The complaint against you should be stated by your employer, the case against you should be outlined briefly and the evidence that has been gathered prior to the meeting gone through with you.
- You should be given the opportunity to state your case and answer any allegations that have been made. You should be able to ask questions, present evidence and call witnesses. If you have a person accompanying you they should also be allowed to ask questions and you should be given the opportunity to confer privately with them. While the person accompanying you should be allowed to address the decision-maker at the hearing, they are not entitled to answer questions on your behalf unless this is agreed by your employer.
- You should be given the chance to provide an explanation for the alleged disciplinary offence, and you should also be asked if there are any special circumstances that you want your employer to take into account.
After the hearing
- It is considered good practice for your employer to adjourn the disciplinary hearing before any decision is taken. Your employer may choose to take no further action or may impose a disciplinary penalty.
- The kind of penalty your employer can impose will depend on what is contained in your contract of employment. But as a general guide, the options can include:
- A verbal warning
- A written warning
- A final written warning
- A disciplinary transfer
- A disciplinary suspension without pay
- Demotion
- Loss of seniority
- Dismissal with notice
- Dismissal without notice
How will you be informed of the disciplinary decision and what information should you receive?
- Once a decision has been reached, you should be informed as soon as possible.
- You should be given the details of any disciplinary action that is to be taken against you in writing, as soon as the decision is made. This written notification should contain the following information: the nature of the misconduct, the period of time given for improvement and the improvement expected, the disciplinary penalty and how long it will last (where appropriate), the likely consequences of further misconduct and the timescale for lodging an appeal and how it should be made.
Appealing the disciplinary decision/sanction
- You have a statutory right of appeal against any disciplinary decision/sanction made, and your employer should inform you of this right of appeal.
- A time limit within which the appeal should be lodged has to be given. Usually this period will be relatively short in order for appeals to be dealt with speedily. This is particularly important if you have been suspended or dismissed.
- You are also entitled to be accompanied at any appeal hearing by a colleague or trade union representative.
- At the appeal hearing you (or your companion) should be given the opportunity to comment on any new evidence arising during the appeal before any decision is taken.
- At the appeal hearing your employer should ask you to comment on any new evidence that has been introduced.
- As with the original disciplinary decision it is considered good practice for an employer to adjourn the meeting to consider the decision.
- You should be informed of the results of the appeal and the reasons for that decision as soon as possible after it is made. Your employer should confirm this in writing. Your employer should also make it clear if this decision is final or whether you have the right to a further appeal.
Further information
Please call the employment department on 0870 143 0970.
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