08 March 2021

Cas's Blog - Avoiding mistakes at disciplinary hearings isn’t rocket science – it’s much harder than that!

When a friend told me the other day that her long protracted home move was still ongoing, I remarked that given all the pitfalls involved it’s amazing that anyone ever actually manages to move.  And that’s a little bit like the disciplinary process.  Although in theory it should be a very straightforward procedure, in practice there are many traps set waiting to catch the unwary, even before the actual hearing takes place.

Let’s assume that a thorough and fair investigation has taken place, leaving the employer in good shape for next steps.  The next stage will be deciding if a disciplinary hearing is required, and if it is, writing to the employee requiring them to attend a hearing. My emphasis here is because attendance at the hearing isn’t optional. A few years ago, a client rang us asking for advice. She had written to an employee inviting him to attend a disciplinary hearing and was a little taken aback when he declined her invitation. It was funny, but just to be clear, employers shouldn’t be extending an invitation to a hearing, as that might give the impression they might politely decline.  Attendance is compulsory!

Staying with the notification of hearing letter, when it comes to being clear about the allegation(s) (something that we all know natural justice and the Acas CoP requires), employers sometimes revert to super-polite and sensitive mode. For example, rather than stating that an allegation of ‘theft’ is just that, they rephrase the allegation into, ‘money going missing’.

So, in a few key strokes they’ve moved from a clear allegation that the employee has stolen the money to, well…what does ‘money going missing’ mean?  Has it been lost? Has someone else stolen the money and the employee should have somehow stopped the theft? Has it miraculously disappeared into thin air? The crucial point here is that the employee is not clear what charge they are facing and as they can’t defend themselves against a charge that isn’t clear, any decision as to their guilt will be unfair.

Still on the letter, the employee must be advised they have the right to accompaniment.  The employee has the right to defer the hearing for up to 5 working days if their chosen companion can’t be available on the proposed date of the hearing. The law is clear on this but as the EAT has confirmed on more than one occasion, if the reason for a longer deferral is reasonable, merely ticking the box of section 10 of the Employment Relations Act 1999 will not trump the requirement to act reasonably and fairly in the circumstances as required by section 98(4) of the Employment Rights Act 1996.

And finally on that letter, we know the employee must be advised of the worst possible outcome of the hearing for them and that means the worst possible outcome for that particular allegation.  So, if the allegation amounts to gross misconduct, then the worst possible outcome for them is their summary dismissal.

By the same token, advising an employee that the hearing may result in their summary dismissal, when they have a clean disciplinary record and the allegation is of minor misconduct (which according to the company’s disciplinary procedure would normally result in them receiving a first written warning), would clearly be a little alarming for them.

The employee may assert that trust and confidence has been breached and consequently resign claiming they have been constructively unfair dismissed. You’ll probably be unsurprised to learn that this has been tested at tribunal, and the employee won their case.

If you want to hear more about how to avoid making mistakes at disciplinary hearings, join me on the KLC Breakfast briefing.

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