Legal Services for Employees and Employers
DISCIPLINARY PROCEEDINGS
DISCIPLINARY
MISCONDUCT OUTSIDE THE WORKPLACE
MISCONDUCT OUTSIDE THE WORKPLACE
A disciplinary procedure is a formal way for an employer to deal with an employee's
· misconduct (unacceptable or improper behaviour)
· capability (performance)
In practice before a disciplinary procedure is commenced, the employer should first consider whether any problems can be resolved in an informal way. This can often be the quickest and simplest solution.
MISCONDUCT OUTSIDE THE WORKPLACE
MISCONDUCT OUTSIDE THE WORKPLACE
MISCONDUCT OUTSIDE THE WORKPLACE
An employee could face disciplinary action for misconduct outside work. This depends on how serious the employer sees the misconduct and whether it could adversely affect them or their image. Any investigation must show what the negative effect would be, or has been, on the employer and/or employees.
DISCIPLINARY PROCEEDINGS
MISCONDUCT OUTSIDE THE WORKPLACE
COMMINUCATION DURING THE PROCESS
Employers should carry out an investigation of potential disciplinary matters without unreasonable delay to establish the facts of the case.
Where practical, different people should carry out a disciplinary investigation and the disciplinary hearing. The length and depth of an investigation depends on the nature of the allegations, documents that need reviewing and number of witnesses
You maybe interviewed as part of the disciplinary investigation, but this should not form part of the disciplinary hearing itself.
COMMINUCATION DURING THE PROCESS
COMMINUCATION DURING THE PROCESS
COMMINUCATION DURING THE PROCESS
There are no statutory rules regarding ad hoc communications during the procedure. However it is good practice for the employer to keep talking to the employee and perhaps any other staff affected. Any communication needs to be clear and confidential.
This can help avoid:
· misunderstandings
· a drop in work morale
· stress or other mental health problems
· damaging the employees reputation
· legal action further down the line·
It also ensures the employee knows what is happening for the employer to check that the correct process is being followed.
CASE TO ANSWER OR NOT
COMMINUCATION DURING THE PROCESS
CASE TO ANSWER OR NOT
After reviewing the evidence, if your employer initially considers that there is a disciplinary case to answer, you should be notified in writing with sufficient information and/or evidence and be invited to a disciplinary hearing.
The hearing should be held without unreasonable delay and allow you reasonable time to prepare your case. There is no legal definition of unreasonable, but this should be relative to the complexity of the case. If your employer delays matters unreasonably or with no good reason this could amount to contraventions of associated legislation.
However, under certain circumstances, you have a statutory right to request to postpone the disciplinary hearing for up to 5 working days.
DISCIPLINARY HEARING
Inability to attend a Disciplinary interview or hearing
If you are continuously unable or unwilling to attend a disciplinary meeting without good reason, the ACAS code of practice says your employer may make a decision on the evidence available, without your attendance.
If you are off sick, you should make every effort to present your case, for example providing a written submission, or attending the meeting via an online platform. If not, whilst your employer should proceed with caution, the disciplinary hearing cannot be delayed indefinitely.
Nevertheless, there are clear risks to an employer in pressing ahead with a disciplinary hearing in the absence of an employee, particularly the case if the outcome might have been different had the employee been present. Hence, best practice for an employer would be to be reasonably flexible as to when, where and how you can attend or present your case. .
RIGHT TO BE ACCOMPANIED
You have the statutory right to be accompanied at the disciplinary hearing and must make a reasonable request to do so. A single companion, chosen from three categories of people. These categories are:-
· a work colleague;
· a trade union official employed by the union;
· a trade union official who is certified in writing by the union as having the necessary experience or training to act as a companion;
Employers can, but do not have to, allow companions who do not fall within the above categories. However, under discrimination law, employers must make reasonable adjustments for disabled employees. This might mean allowing someone else to attend, for example a support worker or someone with knowledge of your condition.
If your companion is not available at the time proposed for the hearing, you are entitled to propose an alternative time within a maximum of 5 working days.
Your companion must be permitted to address the hearing in order to put your case, and sum up the case and respond on your behalf to any view expressed at the hearing. They must also be permitted to confer with you during the hearing. However, your companion has no right to answer questions on your behalf, to address the hearing if you do not wish him or her to do so, or to prevent your employer explaining its case.
THE DISCIPLINARY HEARING
The Disciplinary Hearing
At the hearing your employer should explain the reason for the disciplinary and discuss the relevant evidence with you.
You should then be allowed to set our your case, answer any allegations, ask questions, present evidence and refer to relevant witnesses.
The Disciplinary Investigation should have acquired information from relevant witnesses.
However, where appropriate and ethical, you may wish acquire statements from witness you believe could add value to your case. In exceptional circumstances you may will to call a witness to attend the Disciplinary Hearing.
APPEAL
You have the right to appeal against a disciplinary decision, and you should be advised of this at the same time as the disciplinary outcome. You should submit any appeal in writing.
Appeals should be heard without unreasonable delay, and should be dealt with by a manager who has not previously been involved in the matter. However, it is recognised that for small employers this may not be practicable.
An appeal may be based on various grounds including new evidence having come to light, or the severity or inconsistency of the penalty imposed.
You should be informed in writing of the appeal hearing result as soon as possible.
You should not be punished by an increased sanction arising from your appeal.
However, should new evidence come to light on a separate then this should be dealt with by new disciplinary proceedings.