If you are facing a disciplinary procedure at work, you should generally be entitled to see the evidence against you. In this blog I set out the typical steps in a disciplinary procedure including the relevance of evidence.
Disciplinary Procedures
Your employer should have a written procedure setting out how it will deal with disciplinary issues. It should follow its written disciplinary procedure and provide you with a copy.
Investigation
Before your employer decides to follow a full disciplinary procedure, it should undertake a reasonable investigation to ascertain the facts relating to the disciplinary allegation(s) that have been made against you. This could involve interviewing and taking statements from you and other individuals, in addition to reviewing any relevant documents or other available evidence.
If you are invited to an investigation meeting you may not be provided with all of the evidence at this point. That is not necessarily unreasonable if your employer is still in the process of gathering information. However, if the matter proceeds to a disciplinary hearing, all of the evidence should be provided to you (see below). It may be difficult to respond to allegations/questions in full in an investigation meeting without sight of all of the evidence. However, you should cooperate with the investigation to the best of your ability but be clear with your employer that you may be unable to provide full responses until you have been provided with a copy of all of the evidence and been able to consider it.
Suspension
In some cases your employer may consider it appropriate to suspend you while it carries out its investigation. This rather depends upon the nature of the allegations. Suspension tends to be more likely where the allegations are very serious and/or where the employer is concerned to protect you or other witnesses or to preserve evidence. Any period of suspension should ordinarily be on full pay and kept as short as possible. If you are suspended you should not attend work or contact any of your colleagues or any of your employer’s clients or business contacts unless your employer has confirmed you may do so. Your employer should write to you to confirm any suspension and to provide details of your obligations during the period of suspension.
Invitation To A Disciplinary Hearing
Just because your employer has conducted an investigation does not automatically mean that formal disciplinary action will follow. It may decide, having concluded its investigation, that there is no case to answer. However, if your employer does decide to take formal action under its disciplinary procedure it should write to you setting out the specific allegations of misconduct and the possible outcomes for you. The letter should include a copy of any relevant evidence that will be relied upon or used or referred to at the disciplinary hearing. This may include copies of any witness statements. In some cases, your employer may consider it appropriate to conceal the identity of a witness. This should not be done as a matter of course and your employer will need to weigh up the needs of the witness against your right to understand the case against you and a fair hearing.
Your employer should specify the date, time and location of the disciplinary hearing and you should ensure that you attend the hearing if at all possible. If you do not attend, it is possible that your employer will proceed with the hearing and reach a decision in your absence.
Disciplinary Hearing
The disciplinary hearing should be conducted by someone other than the person who carried out the investigation, although if your organisation is small, this may not be possible. At the hearing, your employer should take you through the evidence identified by the investigation, allow you to respond to that evidence and to present any evidence of your own.
You have a right to bring a companion with you to any formal disciplinary hearing. This right does not automatically apply to an investigation meeting, although your employer may allow you to have a companion at an investigation meeting. The companion can be a colleague or trade union representative of your choice.
Sometimes it will become apparent during the hearing that your employer needs to carry out further investigations before it can reach a conclusion. However, it should communicate its decision to you in writing as soon as possible after the hearing.
If your employer decides that you have committed an act of misconduct, it may give you a written warning. Depending upon the seriousness of the conduct it may decide to go straight to a final written warning rather than giving a first written warning. Some misconduct offences are so serious that they are classed as gross misconduct. If your employer finds that you have committed an act of gross misconduct it may consider it appropriate to dismiss you even if it is your first offence.
What If I Do Not Agree With The Outcome?
You should have the right to appeal any decision reached by your employer. Your employer should set out the appeal procedure in its letter to you informing you of the outcome of the disciplinary hearing. If, for example, you were not provided with a copy of the evidence that your employer relied upon on or you consider that your employer could not have reached the conclusion it did on the basis of the evidence presented, these would be points you can make by way of appeal.
If you are dismissed then you may also be able to challenge the dismissal by way of an unfair dismissal claim. For the dismissal to be fair your employer must follow a fair disciplinary procedure prior to reaching the decision to dismiss and be able to show that the decision to dismiss was a reasonable decision for it to make in all the circumstances. If your employer has not provided you with a copy of all the evidence it relied upon, for example, then there may be grounds to challenge the fairness of the dismissal on this basis.
For further information about unfair dismissal see, https://lincslaw.co.uk/blog/what-should-i-do-if-i-have-been-unfairly-dismissed-from-work/ and https://lincslaw.co.uk/blog/unfair-dismissal-the-two-year-rule/
Lincs Law Employment Solicitors Can Help You
If you would like advice on your own situation, please contact us for a free enquiry on 01522 440512 or via the web chat or contact form on our website at www.lincslaw.co.uk.
Kathryn Bolton
Associate
Specialist Employment Solicitor
Lincs Law Employment Solicitor
Tags: disciplinary evidence disciplinary procedure Disciplinary process Kathryn Bolton Employment Solicitor lincs law employment solicitors misconduct dismissal misconduct evidence Specialist Employment Law Solicitor unfair dismissal