It is a fact of life that difficulties can arise at any time on both sides of the employer and employee relationship, but initiating and conducting disciplinary procedures and hearings is still seen as a reluctant last result for many businesses. For those businesses that do utilise this practice, it is often as a last-ditch attempt to deal with serious issues such as harassment, bullying or persistent unauthorised absence.
Whilst many equate spiralling levels of depression, anxiety and stress to something of a workplace timebomb, statistics actually show that the number of working days lost to absence have fallen to their lowest levels on record. The Office for National Statistics (ONS) reported that employees took an average of 4.1 sickness absence days in 2017, compared with 7.2 days in 1993, when records first began.
Despite this, many businesses still use formal disciplinary hearings as way to attempt to combat absence rates. A study conducted by the company Group Risk Development (GRID) showed that they are most popular amongst larger businesses, perhaps as they are more likely to have set policies and procedures in place. The survey of 500 HR professionals showed that of those surveyed, disciplinaries for unauthorised absences were used by 15 percent of larger businesses, and 14% of medium sized businesses. Only 6 percent of micro businesses reported that they instigated disciplinary procedures.
Ultimately, managing conflict effectively is the key to maintaining a healthy and productive working environment for all employees.
What is a disciplinary hearing?
A disciplinary hearing or meeting usually occurs at the primary stages of a disciplinary investigation. Usually, a hearing is arranged once an employer has investigated the reported situation and reviewed all evidence that is available. A hearing will then be conducted, at a time that is deemed suitable for both the employer and the employee in question.
During the hearing, the employer should explain the allegations, and discuss in detail all the evidence collated during the previous investigation. The employee should then be allowed to set out their case, and answer the allegations in full – they should also be provided with a reasonable opportunity to ask questions, present evidence, call relevant witnesses, and raise any issues regarding the information provided by witnesses (if applicable).
Why are they conducted?
Disciplinary procedures, such as hearings, provide clear structures for dealing with any difficulties that may arise within a working relationship, which should allow for them to be resolved fairly and reasonably. Disciplinary hearings are primarily conducted when all other avenues, both informal and formal, have been exhausted by an employer. You could use a disciplinary for a number of other reasons, including:
- Making employees aware of what is expected of them in terms of performance or conduct standards
- Identifying obstacles that may stop individuals from achieving the working levels that are expected of them, or a lack of clarity around job requirements
- Enabling employers and employees to agree suitable goals and timescales for improvement in an individual’s performance or conduct
- Attempting to resolve matters before they reach an employment tribunal stage
- Demonstrating to any resulting tribunal that due procedures have been followed up to and including that point
What are the most common issues raised at disciplinary hearings?
The need for a disciplinary hearing could arise from any number of issues, but there are a number of common workplace scenarios that appear to crop up again and again. These include general misconduct, poor performance, poor timekeeping, unauthorised absence, misuse of email, social media and the internet, bullying and harassment, theft, health and safety, substance misuse, violence and discrimination.
A survey conducted by Personnel Today showed that, of over 500 employers questioned, 93 percent rated general misconduct as the most common issue discussed within a disciplinary hearing. Poor performance or capability was rated the second most common issue, at 87 percent, and poor timekeeping came in third at 59 percent.
How should a company instigate a hearing?
This stage normally occurs after the facts of the complaint or general disciplinary have been established. If you have decided that there is an official disciplinary case to answer, you must ensure that your employee is notified of this in writing.
This written statement should include information about the misconduct or other issue, and its possible consequences – this will then allow them to prepare sufficiently for the case to be discussed at a disciplinary hearing. It would also be good practice to provide copies of any written evidence. Included in the written statement or letter should be details of the time and venue for the disciplinary hearing.
Does the employee have the right to be accompanied?
It is a statutory requirement for an employee to be accompanied to a disciplinary hearing, and it is also considered good practice to allow a person of their choice to attend alongside them. Some employers include such provisions contractually as part of their wider disciplinary and grievance policies, as they recognise the value that companions can add to the process.
Workers are entitled to be accompanied to a disciplinary meeting that is likely to result in:
- The issue of a formal warning
- The taking of other disciplinary action
- The confirmation of a warning, or of further disciplinary action
The statutory right entitles your employee to be accompanied by a fellow worker, a trade union representative, or an official employed by a trade union. You must agree to your employee’s request to be accompanied by a person from any one of these categories. You can however, ask that they try to pick a companion that is suitable, willing and available to attend the meeting, rather than sourcing someone from far away or who has difficulty in travelling etc.
Can it be rescheduled at employee request?
It is normally in the best interests of everyone involved to conduct a disciplinary hearing as soon as possible within the wider disciplinary process, but your employee does have the right to ask for the hearing to be rescheduled from its original time. This particularly applies to a situation where your employee’s companion may be unavailable for the agreed meeting date.
If you do need to reschedule, your employee should offer an alternative date in writing. This date must be within five working days of the date of the original meeting. You should also ensure that your policy around disciplinary hearing dates is reasonably flexible, as this will also allow for those needing a translator or sign language interpreter.