Minimising Risk – Disciplinary Hearings

If during a disciplinary investigation meeting the employee is unable to provide a satisfactory explanation for their behaviour and there is a case to answer, then a disciplinary hearing is probably on the horizon. In this article, we look at some key problem areas and provide guidance to help with a disciplinary hearing.

When is a disciplinary hearing the right course of action?

A lot of resource goes into a disciplinary hearing, so make sure that this is the appropriate route to follow by considering the following factors:

• An informal warning would be inappropriate Depending on the circumstances, it can be more appropriate to simply have a documented discussion or to issue a letter of concern, rather than progress to a formal hearing.
• The matter is a conduct issue 'Conduct' is when someone has essentially chosen not to do the right thing. This is opposed to a 'capability' issue, where someone can't do the right thing but not for want of trying. This is usually due to limitations such as skills or health.
• The employee ought to have known better There should be rules or instructions that have not been followed. Alternatively, it might simply be a common-sense issue. For example, even though there may not be a social media policy, it should be obvious that posting something which is explicit and offensive about your employer online, where other colleagues or even clients are likely to see it, is not acceptable! It is important to note that allegations would need to be carefully worded if there is not a written rule that has been broken.
• It would be consistent It should be the case that the type of conduct in question would always lead to formal action. There should not be any examples of anyone having done something similar who did not face disciplinary action as a consequence, (unless there is a good reason for treating the two situations differently).

How do you address the allegations to the employee?

• On a disciplinary invite letter, the allegations should be clearly set out. They should state what the employee has done wrong, when this happened and include brief details of what happened.
• The employee must be able to understand exactly what they are being accused of, so they may fully prepare for the meeting.
• There must be no reason for the employee to doubt that the matters of concern are 'alleged', as any evidence that the outcome of the hearing is pre-determined may seriously undermine the meeting and may even result in the outcome being procedurally unfair.
• Disciplinary action can only be taken in respect of allegations that were set out in the invite letter, and only in respect of those which are found to be true. For this reason, allegations must be carefully worded, and there should be an allegation for each matter of concern.
• When there has been misconduct which is serious enough to warrant a disciplinary hearing, the circumstances usually warrant at least two separate allegations. It is important to distinguish these and to deal with each allegation in turn. By doing so, if one of the allegations fall down, you may still be able to take some form of action based on the other.