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**Wrigleys Essential Employment Guide** The Disciplinary Process

14 February 2022

How do you conduct a disciplinary hearing?

In this series of articles, Wrigleys’ employment team explores the disciplinary process, offering guidance on key steps for employers.

In this article, we look at key considerations around how to conduct a disciplinary hearing.

By the time a hearing has been organised, the employer will have determined that there is a misconduct case to answer.

The purpose of the hearing is to allow all of the available evidence to be weighed in order to reach a fair and reasonable decision. Employers also need to take care with how the hearing is conducted to ensure the hearing itself is fair.

The burden of proof for upholding allegations at a disciplinary hearing is on the balance of probabilities – in other words, it only has to be more likely than not that the allegation is true – and it is at the hearing where the employer decides whether or not that burden of proof is met.

1. Who attends the hearing?

 At a disciplinary hearing then any of the following may attend: 

  • The hearing will be presided over by someone usually called either the chair or hearing manager. Sometimes, a hearing panel of three or more people will preside over the hearing. Ultimately, it will be for the chair, manager, or a decision of the majority of the panel, which decides whether any allegation is proved (or upheld) on the balance of probabilities.  
  • There will often be a note-taker to take accurate minutes or notes of the hearing. This person will usually be a part of the employer’s HR team, but may be another employee or even someone external. 
  • It is considered best practice for the investigation manager to be present so that they can explain the investigation report findings and answer any questions about the investigation which may come up. 

Where the employer is a small organisation, the chair, notetaker and investigation manager may be the same person. Although this is not ideal, it is recognised that not all employers have the resources to fully separate out these roles. Smaller employers may wish to consider appointing, for example an HR consultant as, an external investigator or even an external decision maker but these are not required; the requirement remains that whoever undertakes these important roles does so fairly. 

  • Also attending the hearing will be the employee who is alleged to have committed misconduct and their representative. The representative is usually either a trade union representative or colleague of the employee accused of misconduct, but may, on occasion, be a close friend or family member if a union rep or colleague is not available or appropriate.  

Very rarely are employees represented by solicitors or barristers – this is usually only where the allegations being proven true could result in a professional effectively being barred from working again (e.g. where a doctor faces being struck off for malpractice by the General Medical Council). 

  • Depending on the evidence to be presented, witnesses may also attend the hearing.  Often this will not be necessary as a thorough investigation should ensure any relevant witness evidence has been collected and is considered.  Written witness evidence can be used.  There is no ‘right’ to call witnesses so that their evidence can be questioned at the hearing; it will be for the chair of the meeting (in agreement with any panel) to determine whether they will need to speak direct with any witness in the case of any issue arising around their evidence. 

On occasion the employee will not show up at the hearing.  With planning this should be known in advance, with a reasonable explanation given and alternative arrangement made, including rescheduling the hearing.  If the employee simply does not show, the employer must make enquiries and, if this is the first occasion of non-appearance it is likely that the meeting will need to be rescheduled.  If this is a rescheduled hearing (following previous non-attendance or agreed rearranging) then the employee should have received a warning that the meeting may go ahead in their absence, in which case it can do so.

2. The setting

Meetings can take place remotely as well as in person, but it is important that if doing so the equipment has been tested and will withstand the process. As with face-to-face meetings, some consideration needs to be given to when and where the meeting will take place, with a view to making it as accessible as possible by all those taking part, including any appropriate reasonable adjustments to take account of any relevant disability.

Any in-person hearing room must be in a quiet area where disruptions are avoided and privacy can be maintained. A break-out area may be required, to allow an employee the opportunity to speak with their representative, or companion, in private or to take a break should the need arise.

3. The procedure of a hearing

We recommend that the chair, manager or panel open the hearing by introducing everyone who is present and explaining their roles. It is then a good idea for the chair to set out what the complaint is against the employee and for the chair to confirm what the highest sanction is if it is upheld (for example, allegations of theft or dishonesty may amount to gross misconduct which, if proven, may result in immediate dismissal without pay in lieu of notice).

It should be made clear that the employee will be able to challenge evidence and present their own case. If they are accompanied by a colleague or trade union representative it should be made clear the companion can assist the employee in this but cannot answer questions on the employee’s behalf.

Before getting into the detail of the hearing, it is a good idea for the chair to check the employee has received copies of all the evidence, including the investigation report and witness statements, and that they have read them before proceeding. If the employee has not read them, it is worth the chair considering allowing the employee reasonable time to do so.

From this stage the hearing will then consider evidence. Depending on the nature and complexity of the allegations, it may be most useful to go through the timeline of events first to establish key events and witnesses before more detailed evidence is considered. An employer should ask questions with the aim of establishing all facts, allowing the employee to explain their alleged misconduct or unsatisfactory performance. An employer should keep their approach formal and polite and encourage the employee to speak freely to establish the facts.

4. Employee’s reply

The employee accused of misconduct should be allowed to put forward their own case and answer any allegations made. They should be permitted to ask questions and present their own evidence and witnesses.

Incorporating the employee’s evidence can be one of the more tricky aspects of the hearing. For example, it may or may not be better to allow the employee to respond to each event and issue in turn, or it may be more helpful to allow the investigation manager to set out all of their evidence first and allow the employee to present their case after, with the chair asking follow-up questions to test evidence on key areas of difference.

Practically speaking, the vast majority of employees will not have pages and pages of documents or witness evidence and will likely spend much of the hearing trying to find problems and discrepancies in the evidence against them.

If the meeting is proceeding in the employee’s absence it is of great importance that the chair, or panel, is able to evidence that they have taken account of any written representations which have been received from the employer and have given appropriate challenge to the evidence presented against the employee.

5. Summation and adjournment

On occasion it is necessary to adjourn the meeting before all the evidence has been heard. This may be to allow time-out, e.g. for short break to allow the employee to have a private discussion with their representative or companion, or something longer from a matter of hours, days or even weeks, for example where a hearing may run into another day, or to allow the chair (or panel) to make separate enquiry into any issue that has arisen.

Long adjournments should best be avoided if possible, and could reflect badly on the employers investigation and strength of their case. Issues arising can include unfairness in the delay in resolving matters, as time passes individual recollections may change, and the potential for allegations of bias where the chair or panel members may be perceived to have contact (and communications about the disciplinary matter) with the employer.

When all of the evidence has been presented and discussed, the chair should summarise the key points. This stage helps all parties to be focus on what the allegations are and what the key pieces of evidence both for and against them is. The chair should check whether the employee has anything further to say.

It is not always necessary for the chair to adjourn the hearing before making a decision, though best practice is for the chair to do so for at least a short time to ensure they cover off everything before coming to a decision. It is also a good idea for the chair to remove themselves from the room or ask other participants to do so, so that they can consider the evidence privately.

In complex cases the disciplinary hearing will be adjourned for the chair, or panel, to consider the evidence before coming to a decision. The chair will tell the employee that they will write with the outcome and their reasons within a set time period.

By conducting a hearing along the lines set out above, an employer will be better able to evidence that they clearly set out the hearing to the employee and allowed both sides’ arguments to be heard when coming to a decision. This in turn will help to show a fair decision was arrived at. We will consider how employers can take steps to ensure the decision and applied outcome are fair, as well as how any appeal should be handled, in our next article in this series.

For further guidance, see Acas guidance: Discipline and Grievances at work.

How Wrigleys can help

The employment team at Wrigleys is expert in helping charities, third sector and education sector clients with complex employee relations, including disciplinary procedures, through providing proactive advice.

We have extensive experience in helping clients to conduct disciplinary procedures to arrive at fair outcomes in respect of staff from junior positions to the most senior. In addition, we can also help by reviewing your disciplinary policies and procedures so that you have the blueprint to conduct fair procedures yourself, helping problems to be dealt with promptly and fairly and tribunal claims less likely to arise.

Importantly, we work within the wider charities, social economy, and education teams at Wrigleys and so we also have in-depth understanding of how our clients’ governance and regulatory obligations impact on employment processes and decisions. Our CSE team can further help to minimise your risks by providing advice on charity law, trustee and director duties and delegation of powers, reporting to the regulator, and reputational risk.

 

If you would like to discuss any aspect of this article further, please contact Michael Crowther,  Alex Elliott or any of the employment team on 0113 244 6100.

You can also keep up to date by following Wrigleys employment team on Twitter.

The information in this article is necessarily of a general nature.  The law stated is correct at the date (stated above) this article was first posted to our website. Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors.

Michael Crowther View Biography

Michael Crowther

Solicitor
Leeds

Alex Elliott View Biography

Alex Elliott

Trainee Solicitor

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