Solid Strategy for a Disciplinary Hearing

Solid Strategy for a Disciplinary Hearing

Thursday, 21 February, 2019 @ 16:06

My Dos and Don'ts

Why Am I Qualified to Talk About This?

As the MD of a large private investigation company a significant proportion of our business is providing employers with evidence of issues such as unauthorised absence, fraudulent injury claims and in-house theft.

I have also been in business for over 20 years and had my share of employee difficulties in the past.

In my experience, Fair Process and Evidence are the 2 keys to a successful outcome.

Fair Process

If fair disciplinary processes are not followed, an employer remains open to claims of unfair dismissal, even if the evidence is indisputable.

If an employee thinks they are going to be dismissed from their position, they may feel that they have nothing to lose. From personal experience, I know just how important it is to dot the i's and cross the t's.

It can be costly to get wrong – not only to reputation, but financially. Tribunal and compensation claims can be up to a year’s salary (or even uncapped in exceptional circumstances).

Evidence

There are 2 categories of evidence - internal and external.

Internal evidence will typically be the company’s own documents. External evidence will be provided by a trusted third party, such as a private investigation company.

To ensure you have a strong evidence trail to present at the hearing, you should:

  • Take minutes at all meetings with the employee
  • Follow up verbal communications in writing (email is sufficient)
  • Log and collate any correspondence with the employee

Your case may also require external evidence, such as that provided by a private investigation company. This can include:

  • Surveillance – to provide photographic evidence proving or disproving purported injuries
  • Vehicle tracking - to build up a pattern of movement (for example, ignoring contractual restrictions whilst on garden leave)
  • Polygraph testing - to confirm injury claims or to deal with company theft
  • Undercover investigators – if, for example, stock theft is endemic

Preparation for the Hearing

The venue should be private and convenient for the employee.

The employee should also be given adequate time to prepare for the hearing – normally a week is sufficient but this depends on the size and complexity of the case.

Even if the employee chooses to attend alone, they should be reminded of their right to be accompanied by a third party.

Ensure that somebody is present to take minutes and record what is said by both sides.

Plan for plenty of short breaks as hearings can be both stressful and tiring for all involved.

During the Hearing

It is important that the hearing follows a proper process.

A manager should be assigned to:

  • Introduce all present
  • Detail allegations against the employee
  • State the aims of the disciplinary hearing

The employee must be given a reasonable opportunity to respond, ask any questions they may have and discuss any documentary evidence that has been provided in support of the company’s case.

Just before the meeting closes, the employee should be given a final chance to add comments or questions before proceedings come to an end and the management make their decision.

The Outcome

Whatever the outcome of the hearing it is important to demonstrate that a robust procedure has been followed throughout.

The outcome will depend on a number of factors, including the severity of the employee’s actions and the company policies in place.

Finally, it is important to demonstrate that the outcome has been designed to improve performance of the employee, or the company. If the outcome is seen purely as punishment of the employee, this may provide grounds for appeal.

ACAS

ACAS has a code for carrying out fair procedures with regard to employee disciplinary hearings. The document is dry, but short, and gives more detail on the points raised here. Non-compliance, without good cause, can result in a dismissal being ruled as unfair, and compensation claims can rise by up to 25%.

The document is available here:

http://www.acas.org.uk/media/pdf/p/f/11287_CoP1_Di...

Going to Court?

If the employee decides to take the company to court for unfair dismissal, it is worth remembering that the more supporting evidence the judge has to consider, the stronger your case will be.

However, if the evidence is strong enough (either that provided by the company, or a private investigation agency), cases frequently conclude without the need for a court hearing.

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