This is the second part to my disciplinary guidance…..I know you have been waiting in anticipation all week! Last week we ran through the difference between misconduct and capability matters. This week we are assuming you are unable to resolve this issue informally and need to invoke the disciplinary procedure.
Tribunal Warning Alert
I must stress the importance of always following the Acas Code of Practice on disciplinary and grievance procedures. There is often some confusion in a process here and whilst you may have your own disciplinary procedure, it needs to follow at least the Acas minimum. Although this is not the law, if it reaches an Employment tribunal, a judge will review if you have followed the Acas code in a fair way. My advice would be to have your disciplinary procedure reviewed by an expert if it has not been for some time.
Carrying out an investigation
The Employer needs to carry out an investigation to get as much information as possible about what has happened (the alleged misconduct or poor performance).
If the investigation finds that there is sufficient evidence to suggest there has been misconduct or poor performance, then the employee is invited to a disciplinary hearing.
Note – Make sure your investigating officer is a different person to who is going to chair the disciplinary meeting.
Notice for Disciplinary meeting
It is important that reasonable notice is provided for a disciplinary meeting, but equally do not leave a large gap between the investigation and meeting. The Employer needs to put the following in writing;
- the alleged misconduct or performance issue
- any evidence from the investigation
- any other information they plan to talk about
- the date, time and location of the hearing
- information on the employee’s right to be accompanied to the hearing
- the possible outcomes
Disciplinary meeting
Who is in attendance?
- Chair of meeting (someone different from investigating officer)
- Note taker (if possible, to take brief notes)
- HR Advisor (if the Chair feels they need support on process etc.)
- Potentially Investigating Officer (they certainly need to be available if any questions are required to be made directly to them.
- Employee
- Companion (must comply with your company procedure categories)
What is the process?
The Employer should;
- Explain the Employee’s alleged misconduct or performance issue
- Go through the evidence
The Employee should be given the chance to:
- Set out their case
- Answer any allegations
- Ask questions
- Show evidence
- Call relevant witness (with good notice)
- Respond to any information given by witnesses
- Choose if their companion can speak for them at the hearing
At the end of the meeting
I would always recommend that the Employer takes some time to consider all evidence, responses etc from the employee. Making a decision immediately without consideration, may suggest that the meeting is not fair and a decision has already been pre-empted.
If the Employer adjourns for a short period, then I would advise they move to another room. I have several horror stories of employees leaving a recording device in a room and listening to the debate the Employer may have with their HR advisor…..
Once decision has been made
The Employer needs to ensure this decision is put in writing. A summary of the meeting and conclusion and the option for the Employee to Appeal the decision.
Storage of sanctions
If the Employee receives a warning (verbal, written or final written) then this will need to be stored on their personnel file for the period of time your procedure says it remains live. I would advise this is stored through a HR software and the dates tracked and removed accordingly.
If you are struggling with a disciplinary or performance matter then we are here to help. Please contact one of the HPC team at contact@highperformanceconsultancy.com. For information on our HR software or book a demo contact sophie@onehrsoftware.com.
