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Recommended Disciplinary Format and Guidelines
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Recommended Disciplinary Format and Guidelines

Introduction

The disciplinary format and guidelines are intended as a recommended guide to aid managers when undertaking disciplinary action. The guidelines aim to follow best practice and should be adopted to ensure consistency. However, there may be circumstances which require mangers to adopt a more appropriate approach to the disciplinary situation.

Investigations 

A preliminary investigation and a formal investigation must take place before the decision for a disciplinary hearing to be undertaken is made. Managers are advised that time needs to be taken to carefully consider the facts before making a decision to proceed towards a disciplinary hearing. 

Preliminary Investigation 

This is to be undertaken by the direct line manager as soon as concerns regarding an employee's conduct arise.

Information gathered must allow you to decide whether or not there is a conduct issue that should be formally investigated under the Disciplinary Procedure. Information gathering may include any relevant documentation, witness interviews and/or putting the concerns to the employee and considering their response. If you are unsure of the correct form of action you should discuss the issues with your line manager or a Human Resources representative.

If the matter is viewed as one of gross misconduct you must discuss whether the employee should be suspended pending a full investigation with your manager and a Human Resources representative. If the decision is made to suspend them confirm this in writing (appendix 9). Alternatively, you may consider transferring them to a different role pending a formal investigation.

Formal Investigation 

Once a decision has been made as to whether a formal investigation should be undertaken the Line Manager or other nominated manager must be briefed on the preliminary investigation (if they were not involved in the original preliminary investigation) and must receive all relevant documentation to allow a thorough investigation to be prepared. For more serious levels of misconduct, and gross misconduct, a Human Resources representative must form part of the investigating team. For less serious levels of misconduct the involvement of the Human Resources Department is optional. If a HR representative is involved in the investigation they should be briefed and form part of the investigation team.

For the investigation you must gather all relevant documentation, prepare questions for any witness interviews and interview relevant witnesses, taking notes and notifying them that if a disciplinary hearing takes place they may be required to attend. You must also notify them that the employee being investigated may see their statement, and that the issue is strictly confidential and must not be discussed outside of the interview.

Where witness interviews have taken place the notes should be typed up to form a statement and ensure that the witnesses sign their statement as a true record of their interview.

Once all information has been gathered you should arrange an investigatory interview with the employee. Inform them of the investigatory interview in writing (appendix 1), stating their right to representation by a work colleague or union representative. Ensure that if a translator is required one is available.

You should book a suitable room for the interview and ensure that it is confidential, free from interruptions, it can cater for any disabilities that the employee may have and that there is another room available for potential adjournments.

Prior to the investigatory interview you should review the employee's disciplinary record to ascertain their current disciplinary situation. Questions for the investigatory interview should be prepared and should cover all relevant points.

At the investigatory interview you should ensure that the employee is aware of the following:

•  that it is an investigatory interview and the format for the interview
•  all those in attendance
•  the actual allegation(s)
•  the investigation so far (e.g. whether you have interviewed witnesses, etc)
•  that notes will be taken and that they will form a formal record of the meeting

Ask questions, allowing the employee to respond in full, and take notes throughout the interview.

Throughout the investigatory interview either party may request an adjournment to consider information.

At the end of the investigatory interview ensure that the employee has nothing more to add. Explain that either further investigations may be required (particularly if new information has come to light) or that time will be taken to consider their statement and they will be notified of the decision to either:

•  go to a disciplinary hearing (this notification will be in writing)
•  that no further action under the disciplinary process will be taken
•  that a different policy/procedure will be utilised (e.g. sickness/capability)
•  that it is a practice issue that will be addressed through further clarification and/or training

The minutes of the investigatory interview should be typed to form a record of the meeting. The employee should be asked to sign the notes as a true and accurate record of the meeting. If he or she refuses a note to this effect should be made if amendments cannot be agreed.

Before a Disciplinary Hearing

If the matter proceeds to a disciplinary hearing the investigating manager should notify their line manager (or other manager conducting the hearing) and the Human Resources department. The manager conducting the disciplinary hearing should be different from the manager who conducted the initial investigations. A different HR Representative from the one involved in the investigation should be selected. This is to minimise the appearance and or existence of bias or any element of pre-judgment in the process.

The investigating manager should place all relevant information into a disciplinary hearing pack. The disciplinary hearing packs should contain a copy of the disciplinary procedure, disciplinary letters, investigatory interview minutes and witness statements and any other relevant information. The disciplinary hearing packs should be sent to the manager who will chair the disciplinary hearing, Human Resources representative (if applicable), the employee and their representative (if applicable).

The manager conducting the disciplinary hearing should ensure that if witnesses are required to attend the hearing that they are fully briefed as to when it is, where it is, what it will involve and that they will be asked questions. The manager should ensure they have all the required witness statements and book suitable rooms for the hearing.

The manager should prepare for the case - a Human Resources representative may assist in the preparation of the case.

Prior to Disciplinary Hearing 

Prior to the disciplinary hearing the manager should:

•  Read and understand the disciplinary procedure and the pack of information they have received.
•  Ensure they are authorised by the procedure to take the relevant level of disciplinary action
•  Check if a Human Resources representative is required to attend (if they do require a HR representative, check that they have received a copy of the pack and are fully briefed).
•  If anyone else from the Company is to be present ensure they are available or a substitute acceptable to the Company and to the employee is available
•  Decide who will take notes of the meeting.

Other steps to be taken before the hearing starts:

Advise the employee in writing (appendix 2):

•  of the allegations made
•  that there is to be a disciplinary hearing, when and where.
•  of their right to be represented
•  of their right to call relevant witnesses
•  of the nature of the allegations - in sufficient detail to allow them to prepare a defence.

In cases of allegations of serious misconduct, the employee will usually have been suspended on full pay when matters first came to light until the date of the hearing (i.e. normally within 5 working days).

The manager chairing the disciplinary hearing should be aware of the employee's employment history (i.e. their disciplinary record, performance, etc).

At the disciplinary hearing: 

Disciplinary hearings are important. Disciplinary action following an inadequate hearing could lead to a claim for unfair dismissal, and if the hearing leads to an actual dismissal, its fairness may be determined by this. Therefore, it is essential that the following checklist is observed. It has been prepared based on the guidelines given by the Employment Appeal Tribunal in Clark v Civil Aviation Authority, with additional points designed to ensure fairness and compliance with the contract of employment. "Remember the point of the meeting is to establish the facts, not catch people out" (ACAS Employee Handbook). 

•  Ensure that the manager chairing the hearing has not been involved in the previous investigations
•  Ensure that all relevant people are present.
•  Introduce all those present to the employee.
•  Explain the purpose of the meeting, including a statement of the allegations.
•  If the employee is not already represented, explain their right to representation and, if necessary, arrange it.
•  Ask the employee whether the allegations are admitted. Confirm exactly what, if anything, is being admitted. If the employee admits the allegations, you should proceed to questions of mitigation and penalty. If the seriousness of the charge is disputed, consider going through the evidence so that you can decide, after hearing both sides, what exactly is established.
•  You should consider the information in the pack and may call any witnesses, particularly if there are further questions to ask the witnesses. If the circumstances require it the identity of witnesses may be concealed to protect them. However, statements, which are not supported by representation of a witness, may be of less value as a result, particularly if they are contested.
•  If, at the hearing, you find that you are unprepared on a disputed point, adjourn the hearing to deal with it.
•  Allow the employee or their representative to ask questions of the witnesses, but be careful to ensure that these are not leading questions, and that the hearing does not become a witness interrogation.
•  Ask the employee and their representative (where applicable) to give any further information in respect of their case. They may also have witnesses, and the manager chairing the hearing and the Human Resources representative (if applicable) may question them about their evidence, again be careful to ensure that these are not leading questions and that the hearing does not become a witness interrogation.
•  When all the information has been gathered the case should be summarised.
•  Ask the employee and their representative to summarise their case.
•  Adjourn and consider the evidence and information gathered . Only the manager chairing the hearing and the Human Resources representative (if applicable) are involved in this stage. Decide on the outcome of the hearing and prepare what you intend to say to the employee once you reconvene.
•  The manager should consider all the evidence in the context of the employee's career and previous record and take into account how similar conduct has been treated in the past. Any mitigating factors should be taken into account. If the manager decides on a penalty this must be reasonable in all the circumstances.
•  Once content that a satisfactory decision has been made the disciplinary hearing should be reconvened. The decision should be given in the presence of the employee, their representative (if requested), the Human Resources representative (if applicable). The decision should not be given in the presence of Witnesses presenting evidence. You should also state the reasons for the decision.
•  The right to appeal against any disciplinary action should be explained to the employee.
•  A letter will be issued to the employee confirming the decision, the reasons why the decision was reached and the right of appeal immediately following the hearing, using the standard format (appendix 3 or 4 or 5). The tone and severity of the letter should reflect the level of the warning and the seriousness of the incident
•  The minutes of the hearing plus copies of all other documentation and letters for the case should be placed on the individual's personnel file (within the HR Department) as part of their employment history and kept in accordance with the Data Protection Act.
•  All other copies of documentation held by the line manger should be given to the Human Resources department where it will be confidentially destroyed.