What rights do you have at a disciplinary hearing?

Being summoned to a disciplinary hearing can be quite an unnerving event. If you are being disciplined or believe you may be disciplined please find below a list of issues to consider.

If you are or may be subject to a disciplinary in the workplace (but a sanction hasn’t yet been decided

The ACAS Code of Practice applies in the following disciplinary situations:

  • Misconduct
  • Poor performance

It doesn’t apply in the following:

  • Redundancy dismissals
  • Non-renewal of fixed-term contracts

If you’re being subjected to a disciplinary sanction

The ACAS Code of Practice applies to all disciplinary sanctions , excepting informal warnings. This therefore includes:

  • Formal warnings
  • Suspension on full pay
  • Dismissal

If you’re subject to a disciplinary to which the ACAS Code of Practice applies certain processes must be observed for the disciplinary to be fair. This includes

1. The holding of an investigation

If your disciplinary is subject to the ACAS Code of Practice then an investigation should be held. This should entail investigations being held without unreasonable delay and may require an investigatory hearing, depending on the circumstances. In misconduct cases different people should carry out the investigation and disciplinary hearings, if possible.

2. Written statements provided

The employer must notify the employee in writing of the alleged misconduct or poor performance (preferably in advance of any hearing) and the possible consequences. The written statement must be provided with sufficient detail for the employee to respond and any written evidence must be presented to the employee prior to a hearing. Further, the employee must be notified in writing in advance of the time and place of the disciplinary hearing and the right to be accompanied.

3. Meetings

The employer must explain and allegations and take the employee through the evidence against them.

The employee must then be given an opportunity to:

  • Set out their case
  • Answer any allegations
  • Ask questions
  • Present evidence
  • Call relevant witnesses
  • Raise points about any information provided by witnesses

If the employee persistently fails to attend meetings then this may lead to an employer taking their decision on the evidence available to them. However, employers should be careful that they are not causing detriment to an employee if they fail to attend for reasons beyond their control (i.e. sickness or family requirements).

The employee has the right to be accompanied at these meetings by a workplace colleague or a Trade Union representative. An employee can’t usually bring a family member or a legally qualified representative, unless the situation is grave enough to warrant it or the employer has acceded to their request.

4. Sanctions

The Code of Practice provides guidance on what sanctions may be appropriate in the circumstances (i.e. whether a written warning, final written warning, paid suspension or dismissal is appropriate).  An important consideration is that the sanction applied must be applied consistently (i.e. one employee can’t be dismissed for the offence and another simply given a written warning in similar circumstances).

If a written warning is supplied then it must set out:

  • The nature of the misconduct or poor performance
  • What improvement is required and over what timescale
  • How long the warning will stay in place
  • The consequences of a failure to to improve conduct or performance

5. Appeals

The employee must appeal in writing and specify the grounds of their appeal. The employer should give the employee notice of their right to appeal and within what time frame they should appeal.

Once the employee has appealed the employer must arrange and hear the appeal without unreasonable delay. Best practice is to agree the time and place of the hearing substantially prior to the hearing taking place.

When the appeal takes place it should be ideally undertaken by a more senior manager than those who have conducted the process so far and should be conducted by a manager (where possible) who has not previously been involved in the disciplinary. However, a certain modicum of common sense applies here. If the company has small resources then it may not be able to fully comply with the ACAS Code of Practice in its entirety.