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“Do you think you have had a fair hearing?”

This is a useful question to ask an employee undergoing the disciplinary process.

If the employee answers ‘yes’, it weakens any subsequent claim they might bring for unfair dismissal. It’s much harder to criticise the process your employer followed if you’ve agreed, during the process, that you’ve had a fair hearing (in reality, most employees will answer ‘yes’, because they are hoping for a decision in their favour and don’t want to annoy the chair).

If they answer ‘no’, you can ask them for further details and it gives you an opportunity to try to fix them. If they say they haven’t had a fair hearing because you didn’t let them explain X, Y and Z, you should then let them fully explain these. If you sort out the problem, it pulls the rug from under their feet when it comes to complaining of an unfair procedure in a possible future tribunal claim.

There are other factors which also help to demonstrate a fair disciplinary process. The employee should be given enough time to prepare for the disciplinary hearing, they should see all the evidence collected against them and be given enough time to find a suitable representative to support them at the hearing. The disciplinary process should be as prompt as possible and an appeal with another senior decision maker should always be offered.

Any disciplinary action taken should be appropriate to the allegation/s against them and consistent with any disciplinary action taken against other employees.

The Company’s disciplinary rules should be clearly laid out in the employee handbook and available for all employees to view. This sets the standards of conduct and performance the Company expects from all its employees.

Any mitigating information should also be carefully considered such as: what is their length of service? Do they currently have any “live” formal disciplinary warnings or perhaps some informal letters of concern on file? Have they admitted the allegations, taken responsibility for their actions and shown remorse? Is this a one-off incident or has this happened before?

Any disciplinary action taken would need to carefully balance all information collected with the need to take reasonable and justified formal disciplinary action.

Any disciplinary action should be confirmed to the employee in writing with reasons provided. Formal verbal warnings are normally “live” for a period of 6 months and written and final written warnings are “live” for a period of 12 months. The warning letter needs to make it clear that any further misconduct and/or poor performance may lead to further disciplinary action up to and including potential dismissal.

Written records should be kept throughout the process and there should be transparency in both the process and the thinking behind any action taken.

Please note this article is for information only and does not constitute advice. To ensure you follow best practice (and, if applicable, do not compromise your insurance), you should contact the Alcumus HR Consultancy team before embarking on disciplinary process.

 

Written by Joanna Dobie, Senior HR Consultant