Some times in the workplace an employee is accused of misconduct or non-compliance with company regulations. In such circumstances a disciplinary hearing is an option for the employer. This also helps the company to set an example that all employees are dealt with justly and fairly and at the same time reinforce its rules and regulations.
Procedure is equally as important as substance in employment law, and an employer who is considering disciplinary process against an employee must be very careful to follow good procedure and ti comply with it’s own contract in investigating any issues objectively and fairly before calling a disciplinary hearing. It must be clear what the allegation is and that there is evidence to support the same, be it witnesses or another form such as documents and statements. A full and complete investigation is therefore necessary to consider whether there is misconduct. Pending any disciplinary hearing if it is necessary to suspend the employee, the employee should not be penalised and should be paid salary. Should the findings of the investigation indicate that there has been misconduct or possibly even gross misconduct, a disciplinary hearing would be held. The employee would have to be notified in writing giving them sufficient time to prepare for the hearing and also be informed of their right to bring a colleague to the hearing.
Misconduct disciplinary hearings
There are two basic classes of misconduct, which may give reason to disciplinary process. Misconduct is one type of behavior which can result in disciplinary process but there are others such as capability concerns.
As regards misconduct, firstly, the employee may have committed a serious violation (gross misconduct) leading to straightforward dismissal. In such circumstances notice may not be given or payment would be given in lieu. Secondly, if the misconduct is minor, following several warnings, the employee can be dismissed with notice.
The hearing should be recorded in writing and copies are to be provided to the employee if requested. Following introductions, the employer will submit the allegation with supporting evidence presenting their case in a clear manner. The employee can subsequently respond, ask questions and provide any relevant mitigating circumstances. The hearing would then be adjourned so that the employer can revise evidence. On reconvening the hearing, the employer will state their verdict with an explanation and in their summary also inform the employee of their right of appeal.
Penalties are subject to the employees’ contract of employment and also general employment law principles which require an employer to act within “ a range of reasonable responses”. However, the following should also be considered; the actual offence and whether there are existing examples of similar cases and the penalties given in those instances; whether the company regulations give guidance on handling matters; the employee’s work history and character history; any extenuating circumstances; and finally whether the penalty recommended is reasonable considering the merits of the case. Any action taken against the employee, or arrangement reached with the employee should be duly recorded and signed by both employee and employer for future reference should misconduct become an issue again. If an arrangement has been reached or a warning given, the employee would have to be told the consequences of future misconduct. If the employee remains in employment, they would be observed and encouraged to perform well and improve with regular appraisals to support them
An employee should have the opportunity to appeal against a formal disciplinary sanction. In an organization which has perhaps more than 10 employees, the appeal ought to be chaired by a neutral person who was not involved in the investigation, ideally a person further along on the hierarchy of management in the company. The employee may appeal against the decision within a given time period provided there is new evidence that has been brought to light or there was potentially a procedural error in the initial hearing, which could therefore potentially change the employer’s verdict. The appeal follows a similar procedure to the hearing. During the appeal the chairperson would have to ensure that the initial hearing was correctly conducted and evidence appropriately given. After presentation of new evidence, the employer will adjourn and subsequently inform the employee of the meeting in writing as soon as practicable. The employee should note that this may be the final decision and there may be no further rights to appeal.