How to Conduct a Disciplinary Hearing

A disciplinary hearing is a formal meeting where you (the employer) invite an employee to discuss concerns. These concerns could relate to misconduct, gross misconduct, performance or a breach to employment terms and conditions.

After you conduct the disciplinary hearing, you make the final decision on whether a disciplinary sanction is needed. If you decide that it is then you also conclude what sanction is appropriate.

A key element of the disciplinary process is the need to write and invite the employee to the disciplinary hearing. It is essential to provide clear and comprehensive communication when inviting an employee. Doing this ensures the employee understands the purpose and details of the hearing.

The invitation letter should include the following:

• The purpose of the hearing which is to address the allegations or concerns raised.
• A summary of the allegation(s) including specific dates and any supporting evidence.
• Any evidence from the investigation – if you have an investigation report you can attach this.
• The date, time, and location of the hearing.
• Who will be present during the meeting and their roles.
• Information about the employee’s right to be accompanied to the hearing. In addition, the letter should confirm how the employee informs you if they are going to be accompanied and who they will be accompanied by.
• The potential outcomes, i.e. first written, final written or dismissal.
• Instructions as to how the employee should confirm attendance.

You should also include a copy of the company’s disciplinary policy.

Before you conduct the disciplinary hearing, it is important to give the employee a reasonable amount of time to prepare and arrange for someone to accompanying them. We recommend providing at least 48 hours’ written notice.

.

A disciplinary hearing involves a number of different people.

The typical roles involved in conducting a disciplinary hearing are:

• Chair – this individual will be the appointed disciplinary hearing manager or an HR Representative. The individual will be leading the meeting and asking the questions. This will be a different individual from the one who completed the investigation. The role of this individual is to act in an unbiased manner. They will present the allegations, hear what the employee has to say in response and determine an appropriate outcome.
• Employee – the employee’s role involves presenting their case and addressing the allegations made against them.
• Note Taker – their role will be to take minutes or notes during the hearing. They will then used these notes to create an accurate record of what is said. The notes do not need to be verbatim. This can be an HR representative, or an impartial staff member not related to the case. We would recommend an HR representative performs the role of note taker. The reason for this is that, in addition to taking notes, they can provide guidance to both parties on processes and procedures.
• Fellow Employee / Trade Union Representative – Employees have the statutory right to be accompanied by a fellow employee or trade union representative.

When preparing to conduct a disciplinary hearing, we recommend you start with reviewing all the information that you have received. This may include the report from any investigation, reviewing any documentation that exists to support the allegations and viewing any relevant CCTV.

Having reviewed the information, consider what questions you have and what information you need from the employee in order to support you reaching a conclusion around an appropriate outcome.

The hearing is a chance for the employer and employee to present their case.  

Whilst there’s no set rules on how to structure a disciplinary hearing, a sensible approach is as follows:

• Introductions – start with introducing those present and explaining their roles.
  • If the employee is accompanied by a representative, introduce the accompanying person and explain their role.
  • Explain that all parties are allowed to request an adjournment.
  • Explain how the meeting will be conducted and the purpose of the meeting which is to consider the allegations and give the employee an opportunity to respond.
• Set out the allegations – explain precisely what the allegations are. Following that, go through the evidence that you have such as supporting documents, witness statements or CCTV footage.
  • Be careful with the words you use. You should not say or do anything that indicates you have already made a decision.
  • When asking questions you should ask a mix of question types. Ask open-ended questions to understand the broad picture of what’s happened. Closed questions will allow you to seek specific pieces of information.
• Employee response – The employee has the right to present their case, respond to allegations, ask questions, provide evidence, and call relevant witnesses (given appropriate notice).
  • Be patient, listen attentively, don’t interrupt, and don’t jump to conclusions! This not only shows respect towards the employee but also allows you to gain an understanding and insights into their account.
  • Remain professional and polite, you may not receive the answers you want to hear but do not get involved in arguments and do not make it personal.
• Close the meeting – having heard from the employee and gathered the information you need, seek final confirmation from the employee that they have said everything they want to say. Then, bring the meeting to a close. 
  • Explain to the employee what will be happening next and when they can expect to receive the outcome. 
  • If an employee is suspended then confirm that they will continue to be suspended until such time as the outcome has been confirmed.

After you conduct the disciplinary hearing, there are two options on delivering the outcome.

Option 1 – Reconvene

The first is that, at the end of the disciplinary hearing. If doing this, you ask the employee and any companion to return at a particular time and deliver the outcome then. 

We do not tend to advise this approach. 

It’s important that you take the relevant time to consider all that you have heard and don’t rush to a decision.  In addition, you may also want to seek legal advice before deciding on an outcome.  

Therefore, we typically advise the second approach which is to provide the outcome in writing.

Option 2 – Written Outcome

With this second approach, you confirm to the employee that you will advise them of the outcome in writing. Additionally, you confirm when you will do this. 

Whilst it’s important to take due time to consider what you’ve heard and seek the necessary guidance, it’s also important that you don’t delay communicating the outcome. 

We recommend that you deliver the outcome within 48 hours of the hearing, and if possible, the day after the hearing. 

Right to Appeal

Regardless of how you decide to deliver the outcome, the employee must be informed of their right to appeal.  If you do decide to deliver the outcome verbally, you must follow up in writing in a timely manner.

You need to address the situation if an employee fails to attend the scheduled disciplinary hearing without a valid reason.

We would always guide employers to be reasonable and demonstrate that they have made attempts to reschedule the hearing and made it clear to the employee what will happen if they continue to refuse to attend.

Our guidance would be that you allow the rescheduled meeting. You then write and invite the employee to the new hearing and explain that, if they fail to attend a second time without a valid reason, then the hearing will go ahead in their absence.

Explain that this may have a negative impact on the outcome as you will only be able to take into consideration the information you have received, and the employee will not have the opportunity to present their case.

Overall, there is no “one size, fits all” guide for conducting disciplinary hearings. There are many variables that need to be considered and some situations aren’t easy as others to navigate.

If you are managing a disciplinary process and would like some additional guidance regarding your situation, give us a call on 0203 146 8770 or contact us using the contact form.