Disciplinary Training Preparing for and conducting disciplinary hearings - PowerPoint Presentation

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Disciplinary Training

Preparing for and conducting disciplinary hearings

& appeals

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Aims and Objectives

Consideration of employment rights

Consideration of misconduct v gross misconduct

How to investigate suspected gross or other misconduct

How to conduct a disciplinary hearing

The right to appeal

Consideration of possible legal claims

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Employment Rights

Employees get full employment rights after 2 years’ service

Only those with full employment rights follow the disciplinary procedure

Those with less than 2 years’ service would be called to an employment review

Furthermore, those with less than 2 years service cannot claim unfair or

constructive dismissal in an employment tribunal, they may however claim

discrimination on the basis of one of the protected characteristics

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Misconduct

Misconduct occurs when an employee breaches the terms of their contract of

EmploymentThe contract of Employment is made up of their individual terms and conditions

and the Employee Handbook

All employees are issued with their contract of Employment prior to their first day

of employment

Agency workers do not have a contract of Employment with us and their contract

is held with the agency

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Gross Misconduct

Gross misconduct is a serious breach of the contract of Employment

A list of categories of gross misconduct can be found in the Employee

Handbook and include but are not limited to:

Unfit through drinks or drugs

Theft

Physical violence or threats thereof

Serious bullying

or harassment

Deliberate damage to property

Bringing the employer into disrepute

Serious infringement of health and safety rules

Unauthorised absence

Leaving work without permission

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Activity Time!

Misconduct or Gross Misconduct?

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Right to Investigation

Any misconduct, gross or other,

needs to be investigated in order to establish the facts of the case

In cases of misconduct, the investigation

would

form as part of the

disciplinary / employment review hearing

Investigation prior to the hearing may include the return to work interview,

timekeeping records, quality records, witness statements

In cases of potential gross misconduct, and where the employee has full

employment rights, it will be necessary to hold an investigation meeting prior

to a disciplinary hearing to establish whether the Investigating Officer (IO) believes

gross misconduct to have occurred

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Investigating Gross Misconduct

The investigation would be chaired by an Investigating Officer and somebody

from the HR department

The Investigating Officer should not be junior or peer of the person being

investigated and should not be a witness to the allegations

The types of evidence they may collate could include:

Investigation meeting

Witness statements

CCTV evidence

Company records and documentation

IT system records

Social networking sites or other media

Other types may include drugs and alcohol test results

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Further Guide to Investigations

Employees should be given a minimum of 24 hours notice prior to an invite to

formal investigation meeting to allow time to prepare their case

Other evidence should be collected prior

to the

investigation meeting with the

employee and forwarded to employee to help them prepare

If the employee brings further evidence (e.g. a new witness) to the investigation

then this must be looked into after the meeting prior to making a decision

The outcome of the investigation should be confirmed in writing to the employee

along with notes of the meeting and any further investigations

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Conducting a Formal Investigation

Ensure you introduce all present and outline everyone’s role in the meeting

Carefully set out allegations against the employee that you intend to investigate

in the meeting

Ask the employee to give a full explanation of their version of events by answering

specific, open questions

Where appropriate, check out the employee’s understanding of company policies

and procedures.

Keep an open mind and consider only the facts, do not get into an argument with

the employee

Do not give an outcome of your decision in the meeting and adjourn to consider

all the facts

On conclusion of the investigation, all evidence to be passed to the Disciplinary

Hearing Officer and the investigator should play no further part in the process

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The Disciplinary Hearing Officer

The Disciplinary Hearing Officer should have had no prior involvement in the

case and should be more senior than the employee who is subject to potential disciplinary action

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Stages of Disciplinary

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The Evidence Review

Whilst the Investigating Officer may have an opinion that further action is

required, the DHO must conduct a thorough review of the evidence collated before deciding whether disciplinary action would be appropriate, including:

Ensuring the employee has had opportunity to provide their version of events

Ensuring the relevant organisational policies, procedures and other documentation

have been reviewed

Identify any gaps in evidence and instruct the IO to conduct further where

n

ecessary

Consider the next course of action, such as formal disciplinary, informal

warning or further training or support for the employee

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Drafting and Issuing the Letter

The employee should always be given a formal letter inviting to a disciplinary

or employment review with at least 24 hours notice

The hearing should be arranged during the employees normal working hours

and should consider their fitness or availability according to pre-booked holiday

or any sick notes received

The letter should contain the following information:

The date and time of the disciplinary hearing

The venue of the disciplinary hearing

Details of the minute taker at the hearing

A detailed explanation of the allegation(s) against the employee

An explanation of the employee statutory right to be accompanied

A list of evidence that the DHO will consider during the hearing

Where dismissal is a likely outcome of the meeting, the letter should include a

warning of this potential outcome

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The Right to Accompaniment

All employees have a statutory right to be accompanied to a disciplinary

hearing, employment review or formal probation review (Employment Relations Act 1999)

The employee may be accompanied by a work colleague or a trade union

official

Special circumstances will only apply in the following circumstances:

Disabled employees have the right to reasonable adjustments and may be

accompanied by an advocate, friend or family member

Employees with limited English language may be accompanied by an official

translator

The companion is there to support and confer with the employee and may

conclude the employees case however they may not answer on behalf of the

employee

If the companion is a work colleague from the same foreign country, they

cannot translate for the employee

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Conducting The Disciplinary Hearing

The DHO will start by introducing all parties present and outlining their roles

They should confirm that the employee has received the letter and all

supporting documentation and check understanding of its contents

If the person is alone, confirm the right to be accompanied

Explain the purpose of the hearing is to consider all evidence and determine

what disciplinary action, if any, is required

Set out the allegations and present a summary of evidence to date

Ask the employee for their explanation and clarify whether they accept or deny

the allegations against them

If you need to challenge the employee, do so politely using evidence collated,

however accept that some evidence may not be accurate or factual

Consider adjourning the hearing to conduct further investigation if the employee

challenges the validity of the evidence

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Concluding The Disciplinary Hearing

Before concluding the hearing, ask whether are any other factors they

want to make the DHO aware

of

Explain the meeting will be adjourned to allow the DHO to consider the

evidence and make an appropriate decision

Ensure that the employee is informed that no decisions have been made

Close the disciplinary

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Making the Decision

Before making a decision, the DHO should consider the following:

Whether the investigation has been as thorough as possible

Whether the DHO fully understands all evidence and documentation

Whether there are any mitigating circumstances that the DHO should

take into account

Whether they believe, objectively, that the allegations are substantiated

What disciplinary action would be fair and reasonable to impose, if any

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Formal Stages of Disciplinary Action

Verbal Warning

Written Warning

Final Written Warning

Dismissal

All stages of warning will have an expiration which will be stated on the outcome letter

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Employment Review Action

Employees with less than 2 years’ service are not entitled to

any stages of warning and may be dismissed without warning, however in the interest of fairness, informal written warnings may be given which we refer to as verbal reprimand or last chance

warning

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Considering Levels of Warnings

The DHO should consider what informal / formal warnings are on file

They should also consider the level of seriousness of misconduct

In cases of gross misconduct, the outcome should always be summary

dismissal

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Dismissal

Where dismissal is the chosen outcome, the employee should be informed

of their notice and whether they are required to work

The notice period will be one week per full year of employment up to 12

years’ service

If the employee is not required to work, they should still be paid their notice

at their standard rate

If the employee is required to work their notice and they choose not to, they

are not entitled to be paid

Where summary dismissal for gross misconduct is the outcome, the employee

will not be entitled to any notice, regardless of their service

As with any termination of employment, they will be paid any outstanding

holiday entitlement

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Possible Legal Claims

Unfair Dismissal

Wrongful Dismissal

Discrimination

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Confirming the Decision in Writing

The outcome letter should summarise the following:

A summary of the discussion and any other issues such as mitigating factors that the DHO took into account

Confirmation of the decision itself

If not dismissal, an explanation of the consequences of further misconduct

An explanation of the appeal process

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Activity Time!

Disciplinary Role Play

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Right to Appeal

All employees will be given the right to appeal against any formal decision

as per the ACAS code and will be given 7 days from receipt of their formal warning / dismissal to appeal in writing which is explained in their formal

letter confirming the disciplinary warning

This right given regardless of whether the employee is able to produce

further evidence

The employee will also have the right to be accompanied at the appeal

hearing, the same rule applies

The hearing should also be introduced and concluded in a similar manner

as the disciplinary hearing

The appeal hearing is an opportunity for the employee to present their

reasoning for appeal

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The Disciplinary Appeal Hearing Officer

The DAHO should be somebody not previously involved in the allegation

and should be somebody more senior than the DHO, if not possible then somebody on the same level

They should read all witness notes to date ahead of the hearing and have

these available during the meeting to refer to if necessary

The DAHO should be prepared to challenge the employee politely and

ensure they avoid getting into a debate or argument

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Conducting The Appeal Hearing

Prior to the meeting, the DAHO will need to read all evidence collected

during the investigation, minutes of the investigation and disciplinary hearing and the employee’s letter of appeal including any supporting documentation

Follow the same structure as the investigation and disciplinary hearings by

explaining the purpose of the meeting and introduce those present

Ask the employee to explain why they are appealing

Pay attention to all evidence, particularly anything new that might be introduced

Adjourn the hearing to consider the evidence and reach a decision

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Appeal Hearing v Disciplinary Re Hearing

Sometimes it may be necessary to re-hear a disciplinary completely if

it is felt the hearing was not done properly or investigations not fair and/or thorough enough the first time

In this instance, the appeal hearing would be carried out in the same

way as the disciplinary and a fresh decision would be made

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Possible Outcomes of the Appeal Hearing

Confirm the original decision

Uphold the decision but change the basis on which made

Change the disciplinary outcome by either reducing severity or overturning

completely

Reinstate a dismissed employee

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Concluding the Appeal Process

The DAHO must confirm the outcome of the appeal and reasons in

writing including minutes of the meeting and any further evidence

The appeal is the final stage in the disciplinary process and the

employee has no further right to appeal, this must be confirmed to the

employee as part of the outcome letter

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Summary

Consideration of employment rights

Consideration of misconduct v gross misconduct

How to conduct a disciplinary hearing

The right to appeal

Consideration of possible legal claims