Employee: Top Tips For A Disciplinary Hearing

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07Jul

Written by Kate Key. Posted in Blog

If you are facing disciplinary proceedings, please read on for our Top Tips.

Most days we receive calls from concerned clients who are facing disciplinary proceedings and are, understandably, nervous about the process and how best to prepare. If you are defending disciplinary allegations, we would be delighted to help. For a free consultation with one of the team at Lincs Law Employment Solicitors, simply use the contact form, engage in a web chat, email contactus@lincslaw.com or call us on 01522 440512 and we’ll be happy to help.

Here at Lincs Law Employment Solicitors, we have a combined 80 years’ experience advising clients facing disciplinary proceedings. As such, we have prepared our Top Tips to help you prepare for your disciplinary hearing.  

1. Review Your Employer’s Disciplinary Procedure

We understand that employees worried about losing their jobs or receiving a different disciplinary sanction often find the whole disciplinary process very difficult. As a result, unsurprisingly, employees often overlook a very obvious point – making sure their employer follows a fair disciplinary procedure!

To explain, if you are facing disciplinary proceedings, your employer should follow their own disciplinary procedure (if they have one). This can usually be found in your Contract of Employment or Employee Handbook.  If you do not have a copy of your employer’s procedure, it is very important that you ask for a copy. This will allow you to check your employer is following their own policy, and prepare yourself for the next steps.

In any event, your employer should follow the ACAS Code on Disciplinary and Grievance Procedures (“the ACAS Code”). This sets out the minimum standard expected of an employer when dealing with disciplinary proceedings. This can be found on the ACAS website.  

Essentially, your employer should:

  • Investigate the allegations against you to establish the facts of the case (which may, or may not, include holding an investigation meeting with you); and
  • Decide whether there is a disciplinary case to answer; and
  • If there is a disciplinary case to answer, inform you about the problem, provide you with sufficient information about the alleged misconduct, and explain the possible outcomes of the disciplinary hearing; and
  • Invite you to a disciplinary hearing; and
  • Allow you to be accompanied at the disciplinary hearing; and
  • Decide on the appropriate action; and
  • Inform you of the outcome in writing; and
  • Provide you with an opportunity to appeal the outcome.

If your employer does not follow a fair disciplinary procedure, you should raise your concerns about this in writing. Depending on when/how your employer fails to follow the procedure, you may wish to do this as part of your disciplinary statement (please see below).

2. Make Sure You Fully Understand the Allegations

As above, before you are required to attend a disciplinary hearing, your employer should have investigated the allegations made against you. Following the investigation process, your employer should have decided, on the facts, whether the matter needed to proceed to a disciplinary hearing.

If your employer has decided you need to attend a disciplinary hearing, you should be notified of the time and location of the disciplinary hearing. You should also be provided with sufficient information (in writing) about the allegations you are facing, including any evidence your employer has gathered throughout the investigation process.

You should receive information such as:

  • A detailed description of your alleged misconduct (i.e., what has allegedly happened, the timing of the alleged misconduct and who was involved).
  • An explanation as to why your actions are deemed to be misconduct (including, if relevant, a copy of any specific policy or instruction you have allegedly contravened).
  • A copy of any evidence your employer has gathered during the investigation process (for example, any witness statements, an Investigation Report, any photographs etc).

If your employer has not provided you with sufficient information about the allegations made against you, or you think you are missing relevant documentation, you should raise this (in writing) with your employer. Do not be afraid to ask for more information – it is so important that, before your disciplinary hearing, you know what you are facing so you can prepare accordingly.

3. Make Sure You Know the Possible Outcomes of the Hearing

In addition to the information listed above, it is important you are aware how serious your employer considers the allegations to be and, consequently, the possible outcomes of the disciplinary hearing.

To explain, if allegations are proven, common outcomes of a disciplinary hearing can include:

  • First Written Warning
  • Final Written Warning
  • Demotion
  • Dismissal with notice
  • Summary dismissal (dismissal without notice).

Given the wide range of possible sanctions available to an employer, you need to know what is at stake before you attend your disciplinary hearing.  In particular, you need to be aware of whether you are facing allegations of gross misconduct and are at risk of dismissal (with or without notice). 

If your employer has not informed you about the possible outcomes of the hearing, ask them! Ideally, you should request further information in writing, to protect your position in the event of a later dispute.

4. Gather Any Evidence You Have to Support Your Case

Your employer’s own disciplinary procedure may set out when your disciplinary hearing should take place (for example, it may provide how many days’ notice you should receive). If this is the case, again, make sure your employer follows their own procedure. If they do not do so, you may wish to raise this issue with them in writing.

If your employer’s policy is silent on this point (or, alternatively, your employer does not have their own disciplinary policy), in accordance with the ACAS Code, your disciplinary hearing should be held without unreasonable delay, whilst also giving you reasonable time to prepare your case. How this operates in practice will, of course, depend on your individual case, including the size and resources of your employer.

If you have received notice of your disciplinary hearing, however, you should start collating any evidence you have to support your case. This could include, for example, witness evidence, character references, and any relevant documentary evidence (such as letters, emails, photographs).

5. Prepare A Disciplinary Statement

As above, we understand that attending a disciplinary hearing is, inevitably, very stressful and difficult. Therefore, we would always advise our clients to prepare a disciplinary statement in advance of their disciplinary hearing.

To do this, you should review each and every allegation that has been made against you. Taking one allegation at a time (if there are more than one), you should think back to the incident(s) in question and explain your position clearly.

Your position will, of course, depend on your personal circumstances. However, as a guide:

  • If you consider your behaviour or conduct was justified, clearly explain why you did what you did.
  • If you do not consider that you committed the misconduct in question, again, clearly explain the reasons why you believe you did not commit the act as alleged.
  • If you have made a genuine mistake, acknowledge the error, apologise, and then explain how it was a genuine mistake and what steps you will take to ensure it does not occur again.
  • If your employer has failed to follow any correct policy or procedure (as above), bring this to their attention in your statement and (if relevant) explain what effect it has had on your ability to prepare.
  • Refer to any mitigating factors – for example, your length of service, your clear disciplinary record and/or any other relevant context to the allegations.

Throughout your disciplinary statement, you should also refer to any supporting evidence you have obtained (as above) and attach a copy of the evidence to the end of your statement.

Once you have prepared your disciplinary statement, you should take a copy of it (and any supporting evidence) to your disciplinary hearing. You should present a copy to your employer at the start of your disciplinary hearing, and make sure they record you have provided a copy of the statement in their meeting notes.

6. Exercise Your Right to Be Accompanied

We would always recommend taking someone along to support you in your disciplinary hearing.

If your disciplinary hearing could lead to some sort of disciplinary action being taken against you (e.g., a written warning or dismissal), you have a legal right to be accompanied by one of the following people: –

  • A Trade Union Representative; or
  • An official employed by a Trade Union; or
  • A work colleague.

You may be able to take someone else (who is not listed above) to your disciplinary hearing. For more information about this, please see our blog here – https://lincslaw.co.uk/blog/who-can-i-take-with-me-to-my-disciplinary-hearing/.

I Do Not Agree With The Outcome Of My Disciplinary Hearing – What Should I Do?

Following your disciplinary hearing, your employer should consider whether the allegations against you have been proven and, if so, what sanction is reasonable. You should be informed of the outcome in writing.

If you do not agree with the outcome of your disciplinary hearing, you should be given the opportunity to appeal. If you do not appeal, any decision will be part of your personnel record and these decisions cannot be challenged internally months later.  Also, if you bring a claim to the Employment Tribunal, an Employment Tribunal Judge will expect you to have exhausted all internal appeals and can reduce your compensation if you have failed to do so.

Lincs Law Employment Solicitors Can Help You

We always hope the information on our website is helpful. However, if you are subject to disciplinary action, we advise you to seek legal advice as soon as possible. If you would like a free consultation, simply use the contact form, engage in a web chat, email contactus@lincslaw.com or call us on 01522 440512 and we’ll be happy to help. 

Kate Key

Trainee Employment Solicitor

Lincs Law Employment Solicitors

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