Disciplinary Hearing Guide for Employers

A disciplinary hearing is a formal meeting between an employer and an employee to address concerns about the employee’s conduct or performance. It is a key step in the disciplinary process, and typically follows an investigation into alleged misconduct or breaches of workplace policies. The purpose of the hearing is to give the employee an opportunity to respond to the allegations, present evidence and explain their actions before a decision is made regarding any disciplinary action.

Employers have to handle disciplinary hearings fairly and in accordance with UK employment law, including the ACAS Code of Practice on Disciplinary and Grievance Procedures. Failing to adhere to these standards can result in claims of unfair dismissal or discrimination. For example, employees should be given sufficient notice of the hearing, provided with all relevant evidence and allowed to bring a companion, such as a colleague or trade union representative.

In this guide, we look at how employers should prepare for and conduct disciplinary hearings.

 

The role of the disciplinary hearing

 

The ACAS Code of Practice sets out standards for employers to meet when managing disciplinary issues. Under the guidelines, a disciplinary hearing should be held as part of an employer’s fair and lawful procedure when handling and investigating a workplace disciplinary issue. Under the guidelines, before an employer can lawfully dismiss or sanction an employee for a disciplinary issue, the employer should first hold a disciplinary hearing with the employee. The meeting must be managed correctly to avoid allegations that the employer failed to handle the disciplinary process fairly.

Should an employee bring a claim against their employer for unfair dismissal, the tribunal will examine whether the employee followed a fair disciplinary procedure and the ACAS code. Where the tribunal finds the employer failed to meet the required standards, it has powers to uplift compensation awards by up to 25%. Likewise, should the employee fail to follow the ACAS guidelines, the tribunal can reduce any award by up to 25%.

The Code applies to incidents of misconduct and poor performance, but not redundancy, dismissals or the non-renewal of fixed-term contracts on their expiry.

If following a fair and thorough investigation, where you can show you have taken reasonable efforts to gather evidence and ascertain the facts, you consider there is a disciplinary case against an employee, a disciplinary meeting should be arranged.

 

Arranging the disciplinary meeting

 

The first step is to set a date and time to hold the meeting in an appropriate location that allows for privacy and confidential discussion. Your organisation’s disciplinary policy may stipulate guidelines on the date for the hearing to take place. Depending on the complexity of the matter, five working days’ notice for a disciplinary hearing would generally be considered reasonable but in any event, there should be no unreasonable delay while allowing sufficient time for you and the employee to prepare for the meeting. 24 hours notice, for example, is unlikely to be regarded as reasonable.

If the employee has a disability, you should ask if any reasonable adjustments need to be made to the arrangements.

You should then provide the employee with formal, written notification of the disciplinary meeting. In the letter, you should include the details of the hearing time, date and location. The notification should also detail each of the allegations facing the employee, provide copies of evidence that will be referred to or relied on, inform of the employee’s right to be accompanied and also explain the potential sanctions or disciplinary they could face, such as a formal warning or dismissal.

 

Is a remote hearing appropriate?

 

In theory, face-to-face HR hearings are preferable since they avoid the potential for technical hitches and they allow for the parties to benefit from being able to read body language and eye contact. However, this may not always be possible, in particular, if a face-to-face hearing would result in unnecessary delays in the proceedings.

When considering if a remote hearing would be appropriate, the employer should primarily look at the working arrangement of the individual who is subject to the hearing.

Where an employee is working remotely on a full-time basis, it would be reasonable for the hearing to also take place remotely.

For workers who are physically present in the working environment, even on a part-time basis under a hybrid arrangement, it would usually be advisable to proceed with a hearing face-to-face. Where another individual involved in the procedure cannot attend in person, such as the HR representative or the individual’s accompanying person, it would be reasonable for arrangements to be made for them to join remotely by video.

 

Can you suspend the employee?

 

In many disciplinary cases, particularly in relation to alleged acts of gross misconduct, employers may consider whether suspension of the employee would be appropriate.

Suspension – even where on full pay – can give cause to unfair dismissal claims or if an employee resigns as a result of the suspension they may be able to claim constructive dismissal. As such, suspension should not be used as an immediate response and any decision to suspend an employee must be taken carefully.

If suspending an employee, you will need to be able to show you acted reasonably in the circumstances and that the suspension did not breach the implied terms of trust and confidence under the employment contract.

This could mean the decision to suspend the employee was due to reasons such as allowing for a fair investigation to take place or to protect other employees while the disciplinary process is pending, where alternative solutions such as changing the employee’s working hours or location temporarily would not be appropriate.

Where you do take the decision to suspend, it should be made clear to the employee that this is not a punitive measure and that the investigation process remains fair and open for an informed decision. You should maintain contact with the employee, reviewing the suspension and to arrange the return to work when appropriate.

 

Who should attend the disciplinary meeting?

 

Precisely who should attend the disciplinary meeting will in large part depend on the individual disciplinary case and the business itself but could include:

 

• An independent meeting chair – this should be a manager not involved in the issue or an external consultant 
• The employee subject to the disciplinary action
• A ‘relevant person’ accompanying the employee
• HR department representative
• The employee’s line manager
• A member of staff who will minute the meeting
• Witnesses called by the employer or employee

 

Employees have the right to be accompanied by a work colleague, trade union representative or official employed by the trade union where they are facing disciplinary action as a potential outcome of the hearing. You should make them aware of this right when notifying of the date of the hearing. It is at your discretion whether to allow the employee to be accompanied by a family member or friend.

Those accompanying the employee can support with presenting the employee’s case, they can make statements and ask questions on the employee’s behalf, take notes for the employee and provide moral support. They cannot however answer questions for the employee.

 

Questions to ask at the disciplinary hearing

 

The disciplinary meeting should be used to discuss the allegations with the employee and to allow the employee the opportunity to respond to the allegations, put forward their case and ask any questions they may have.

The questions you ask will determine in large part the impact of the disciplinary meeting and your ability to make a fair and informed decision on the matter. The specific questions to ask will depend on the individual circumstances of the issue but could cover the following:

 

Confirmation from the employee regarding the disciplinary procedure and their rights

 

The employer should clarify that they have done everything possible to make the employer aware of the disciplinary procedure, what is deemed unacceptable behaviour, and what their rights are as an employee.

 

• Does the employee know why they are at the disciplinary meeting and the possible consequences?
• Has the employee received details in writing of the accusation made against them?
• Has it been made clear to the employee of the possible disciplinary consequences, e.g. whether the accusation could lead to a warning, demotion or dismissal
• Do they understand the accusation being made against them?
• Has the employee been given access to the disciplinary procedure?
• Are they aware that the behaviour connected with the disciplinary investigation is unacceptable?
• Are they aware of their rights as an employee, for instance, to be accompanied to the disciplinary meeting and appeal the decision?
• Do they feel that have been given sufficient time to prepare for the disciplinary meeting?

 

 

The employee’s response to the allegation(s)

 

The exact questions to be asked will depend on the kind of accusation that has been made, whether as a result of a grievance from another employee, an issue with the employee’s conduct or performance or if there is alleged gross misconduct.

The employee should be asked whether they feel the accusation is valid. Was their conduct unacceptable? Do they feel they are underperforming? Are there mitigating circumstances as to why the situation occurred, for instance, tiredness or ill health leading to making a mistake. Alternatively, do they disagree with the accusation?

Ask the employee to explain the events that have led to the accusation. What happened? Who was present? What were the repercussions?

Ask the employee to present any evidence they have gathered or call witnesses to support their case. The employee must be given the opportunity to give their side of the story, whether that is to deny the accusation or explain why they behaved in an unacceptable way.

 

In answer to evidence

 

During the meeting, it will be important to examine any witness statements and all other relevant evidence. As you work through the evidence, it may become necessary to ask corresponding questions.

For instance, where CCTV footage is used, “Were you aware of this CCTV camera?” or in answer to a witness, “Can you confirm that your colleague said this to you?”.

Witnesses can also be called to the meeting, and be questions on their recollection of events to help provide further clarity and perspective on the allegations.

 

Employee’s final comments

 

At the end of the meeting, once all the evidence has been examined and all questions asked and answered, the employee should be asked if there is anything more they would like to add or ask. This gives the employee the opportunity to react to any evidence or questions that came up during the meeting.

 

Tips for leading a disciplinary meeting

 

The following are practical pointers for conducting a disciplinary hearing:

 

Take notes

 

Do not underestimate the importance of taking contemporaneous notes during the meeting. Record the questions that were asked, who asked them and what the response was. Where possible, this responsibility should be assigned to someone who will not be involved in the meeting to ensure focus on the requirement.

Should the matter escalate to a tribunal, the notes may be relied on as a record of the discussion. At the end of the meeting, give the employee the opportunity to check the minutes and sign and date to confirm their agreement.

 

Electronic recording

 

In most cases, it would not be possible for either party to insist on recording the meeting on an electronic device, unless both the employer and employee agree (for example if this would support a request for a reasonable adjustment for a disabled employee) or if there is provision for recording within the organisation’s disciplinary policy.

 

Consider your questioning

 

Try to make your questioning open-ended to allow the employee to explain and provide detailed responses: “Could you explain what happened… tell us about…”. You want to be satisfied you have a full response before moving on to the next question.

Try to keep the atmosphere professional and curteous, avoiding hostility, aggression and putting pressure on the employee. Also try to stay open-minded and avoid asking leading questions or assuming the answer before it’s given.

Listen to the responses as while you may have a pre-prepared set of questions, the employee’s answers may give rise to new questions to examine.

 

Breaks

 

Disciplinary meetings can become stressful for the employee and if necessary, you can pause the session to allow for a short break to recompose and refocus to the matter at hand.

 

Closing the hearing

 

The employee should be given the opportunity to confirm that the notes made during the disciplinary meeting are a true reflection of what was discussed. A copy of this record should be forwarded to the employee.

It may be necessary to ask for further information or clarification before a decision can be made. In this case, the investigation will continue and a future disciplinary meeting may need to be arranged.

If all parties are satisfied the hearing has finished, you should adjourn to consider the evidence and come to an informed decision. It is generally not advisable to make a decision at the close of the actual hearing as this may indicate a pre-conceived decision and could give rise to allegations of unfair procedure.

 

Practical concerns for HR of remote disciplinary hearings

 

Conducting a hearing online will demand a full consideration of the practicalities and potential limitations compared with postponing a hearing or requiring all parties to physically attend a meeting.

 

Video conferencing

 

Remote hearings should be conducted via secure video conferencing. It is generally not advisable to proceed by audio only. This is because it is important for all the parties to see who is present, and also, to allow for participants to pick up on body language and emotional responses as part of what can often be difficult or emotional exchanges.

Whatever technology provider your organisation uses, you should make sure it is accessible to all the parties to the call in advance.

 

Remote hearings & reasonable adjustments

 

The employer’s duty to make reasonable adjustments to accommodate the needs of a person with a qualifying disability still applies to remote hearings.

It will be important to consider requests for reasonable adjustments to avoid allegations of unlawful disability discrimination. As such, the decision to hold a remote hearing may well itself be a reasonable adjustment, while in other circumstances, a video conference may not be appropriate due to the individual’s disability.

 

Circulating documents

 

As with face-to-face hearings, you must make sure that relevant documents are circulated to all parties in good time and via a secure method. If documents are to be sent by post, make sure you check with the employee and other parties where the documents should be sent, as it may not be their normal home address. You should also consider how documents will be accessed during the meeting. For example, most video conference software includes the facility to view documents collectively during the meeting.

 

Recording remote HR hearings

 

It may be advisable to record the video conference, but there are considerations to take into account. If the hearing were to be held as normal in your workplace you should consult your own procedures to see whether they would allow it to be recorded, by either the employer or employee. If it would not, then there needs to be a particular reason why the remote hearing is recorded, and you need to seek your employee’s agreement to such a variation to the disciplinary and grievance procedures. In addition, it is imperative that in advance you seek each attendee’s permission to record the hearing and ask them to re-affirm their permission at the start of the video. If you wait until the beginning of the meeting to seek permission the employee may feel pressured to agree and then regret this later and make a complaint.

If you are worried that your employee will make a covert recording of the hearing then you should explain in advance that this is not allowed. If your disciplinary and grievance procedures already disallow covert recordings then you can refer your employee to the relevant provision in the document. It is advisable to ask the individual to confirm at the start of the hearing that they are alone and are not recording the hearing.

In relation to making and storing the recording, you must make sure that you comply with relevant data protection legislation. Your organisation should already have procedures in place to support this, but be careful where you are storing things if you are working from home.

 

Note-taking

 

Regardless of whether the hearing is recorded or not, the employer should have someone joining the hearing specifically to take contemporaneous notes of the discussion.

 

Remote hearings & the right to be accompanied

 

As with disciplinary and grievance hearings conducted in person at the workplace, employees have a statutory right to be accompanied to these meetings by a colleague or trade union representative. However, there are some additional considerations:

 

• whichever technology provider you choose, the representative must be able to put and sum up the employee’s case, confer privately with the employee and respond on behalf of the employee to any views expressed at the meeting. It may be simplest to allow the employee and their representative simply to leave the meeting to confer, but they should have a link or similar in order that they can rejoin the meeting quickly and easily; and
• some employers allow representatives or companions to attend investigatory meetings too, although they do not have to do this. You should consider whether to allow the employee to be accompanied to a remote investigatory meeting in order to try to avoid any complaint later of procedural unfairness.

 

 

ACAS Code compliance

 

Employers must ensure that any remote hearing is conducted in full compliance with the ACAS code on conducting grievance and disciplinary hearings.

 

 

After the disciplinary meeting

 

The decision on the matter should be made without unreasonable delay following the hearing. This should be confirmed to the employee in writing, whether the decision is in the employee’s favour or if it is against the employee. The notification should detail the outcome and any disciplinary action or sanction that will be taken, for instance, a formal warning, demotion or dismissal.

The letter should also specify the process to appeal the decision should the employee disagree with the decision, if they feel they have been treated unfairly or if they believe the disciplinary process was in any way conducted incorrectly.

The appeal process should focus specifically on the grounds for complaint identified by the employee and why the employee feels this led to an unreasonable decision and disciplinary action. If the employee has raised concerns about procedural unfairness in the original investigation and hearing, there may need to be a rehearing to discuss the case again.

 

Need assistance?

 

HR hearings form part of a fair and lawful disciplinary or grievance process, meaning a remote meeting may, in the circumstances, be necessary to manage legal risk and help resolve the issue in a timely manner. Even in the most perceivably clear-cut of cases where there appears to be overwhelming evidence against an employee to justify disciplinary action, employers must proceed with care. Where a fair process is not followed, the employer is at risk of rendering the disciplinary process unlawful, potentially giving cause for a claim for unfair dismissal.

DavidsonMorris are experienced employment law and HR specialists offering guidance and support to employers in relation to disciplinary proceedings including workplace investigations and hearings. We can also act as an independent chair to ensure impartiality in any disciplinary meeting. For guidance and support in handling disciplinary issues, contact us.

 

Disciplinary hearing FAQs

 

What is a disciplinary hearing?

A disciplinary hearing is a formal meeting where an employer addresses concerns about an employee’s conduct or performance and decides on any necessary action.

 

What are my rights at a disciplinary hearing?

Employees have the right to be informed of the allegations, receive evidence in advance, bring a companion (a colleague or trade union representative), and respond to the concerns raised.

 

Can I bring someone to a disciplinary hearing?

You have the right to bring a trade union representative or a colleague to the hearing for support. Employers are not legally required to allow anyone else, such as a solicitor.

 

What happens if I can’t attend the hearing?

If you cannot attend, inform your employer as soon as possible. They may reschedule the meeting. If you repeatedly fail to attend without valid reasons, the hearing could proceed in your absence.

 

How should I prepare for a disciplinary hearing?

Review the allegations, gather relevant evidence, prepare your response, and consult with your chosen companion for support.

 

Can I appeal the outcome of a disciplinary hearing?

You have the right to appeal if you believe the process was unfair, the decision was unreasonable, or new evidence has come to light.

 

What are the possible outcomes of a disciplinary hearing?

Outcomes may include no further action, a verbal or written warning, suspension, demotion, or dismissal, depending on the severity of the issue.

 

How long does a disciplinary warning stay on my record?

The duration varies but is typically between 6 to 12 months, depending on the company policy and the severity of the misconduct.

 

What if I feel the disciplinary process was unfair?

If the process was unfair, you can raise a grievance or appeal the decision. If unresolved, you may seek advice from Acas or consider legal action.

 

Glossary

 

Term	Definition
Disciplinary Hearing	A formal meeting between an employer and an employee to address allegations of misconduct or poor performance.
ACAS Code of Practice	Guidelines provided by the Advisory, Conciliation and Arbitration Service to ensure fair handling of disciplinary and grievance procedures.
Misconduct	Inappropriate or unacceptable behaviour by an employee that breaches workplace rules or standards.
Gross Misconduct	Serious misconduct, such as theft or violence, that can justify immediate dismissal without notice.
Reasonable Notice	A sufficient amount of time provided to an employee to prepare for a disciplinary hearing, typically at least 48 hours.
Right to be Accompanied	A legal entitlement allowing employees to bring a colleague or trade union representative to a disciplinary hearing.
Investigation	The process of gathering evidence to determine whether allegations against an employee are valid and whether a hearing is necessary.
Outcome	The decision made following a disciplinary hearing, which could include a warning, dismissal, or other actions.
Appeal	The process by which an employee can challenge a disciplinary decision they believe to be unfair or incorrect.
Unfair Dismissal	Termination of employment that is deemed unreasonable or procedurally flawed under UK employment law.
Employment Tribunal	A legal body that resolves disputes between employees and employers, such as unfair dismissal claims.
Gross Insubordination	A serious act of defiance or disobedience towards an employer, potentially warranting dismissal.
Trade Union Representative	An individual elected or appointed by a trade union to support and represent employees in workplace matters.
Written Warning	A formal notice issued to an employee as a result of misconduct, outlining the behaviour that must improve.
Suspension	Temporary removal of an employee from their role, often while an investigation is conducted.
Procedural Fairness	Ensuring that all steps in the disciplinary process are carried out in accordance with legal and organisational guidelines.
Summary Dismissal	Immediate termination of employment due to gross misconduct, without the usual notice period.
Mitigating Circumstances	Factors considered during a disciplinary hearing that might reduce the severity of the outcome.