Posted on

Guidelines for disciplinary hearings

Brittany Brathwaite, labour management adviser

Guidelines for disciplinary hearings

Social Share

The proclamation of the Employment Rights Act (ERA) encapsulated and brought to life the necessity to execute disciplinary hearings.  The words may seem daunting but in fact many companies have been using the system of disciplinary hearings for years; the mandate to inform the worker of his/her right to have a representative present on his/her behalf is now expressly stated along with other rights.
Getting these meetings right is critical for both the employer and the employee, as conducting a disciplinary hearing is part and parcel of ensuring procedural fairness for the employee. Adherence to the mandated guidelines is essential. As highlighted in the United Kingdom’s Labour Guide, procedural fairness may in fact be regarded as the right of the worker in respect of the actual procedure to be followed during the process of discipline or dismissal.
Even where you may have a functioning disciplinary code and an offence may surmount to dismissal, you must follow a fair procedure. Usually, the procedure will require a disciplinary hearing however, for dealing with instances that result in immediate dismissal, the Modified disciplinary procedures in Part C of the Employment Rights Act can be used. This is usually for those situations involving gross misconduct. It should be noted however, that even where there is cause for summary dismissal, that the established procedure must still be followed; the employee must be granted the right to rebut any claims he/she does not think are fair as well as given the opportunity to appeal the employer’s decision.
The fourth schedule, Part A – B, of the Employment Rights Act further outlines rules which should be taken into account in dismissal and disciplinary procedures. Although some companies may have internal grievance handling procedures and/or established disciplinary procedures, ensure such policies are aligned with the aforementioned section of the act. Part B of the schedule is sectionalized and offers guidance for each stage of the process, which are:
Step 1: Statement of ground for action and invitation to meeting – includes setting out the alleged conduct in writing and detailing the employee’s right to representation in the invitation to the disciplinary hearing.
Step 2: The meeting – outlines reasonable timelines for the scheduling of the meeting, and in addition sets outs reasons why the meeting shall or shall not take place as a result of a procedural breach by either party.
Step 3: Appeal – Sets out the procedure for an employee to follow should he/she wish to appeal the outcome.
The steps set out in the schedule are not difficult to follow; both employers and employees should seek to adhere to all aspects outlined where reasonably practical.  Below is a checklist to guide anyone tasked with facilitating a disciplinary hearing.
Please note the following procedural fairness checklist applies to all disciplinary hearings, whether for misconduct or non-performance: Fully investigate the complaint. Record all aspects of the investigation in writing. Compile written statements from the complainant and all witnesses. Advise the accused in writing of the date, time and venue of disciplinary hearing, as well as his/her right to representation.
Advise the accused in writing of the alleged conduct or characteristics of the employee, or other circumstances which led the employer to contemplate taking disciplinary action. No disciplinary action should be taken prior to the hearing; suspension with pay can be utilised during the investigative stage.
Ensure the accused has reasonable time to prepare his defense and appoint his representative.
Ensure the complainant has provided copies of all written statements to the accused.
Convene the disciplinary hearing, where possible under the chairmanship of a third party. The general rule of thumb here is that an impartial individual should chair the hearing; this could be part of the management team who had no part in the investigation or an external consultant, to guarantee the hearing is free from biases.
Ensure all communication to the accused is detailed in writing such as: the verdict, the sanction as well as the notification of his right to appeal if he/she is not satisfied with the outcome. This should be sent to the accused as well as his representative and a copy placed on the employee’s file.
The checklist was modeled after the requisite sections of the ERA, nonetheless you should refer to the act, especially for policy creation. All parties should keep in mind that no internal policy can trump the processes or procedures outlined by legislation. A procedural breach by an employer could result in the dismissal of charges against an employee. Therefore, we must reiterate the importance of adherence to the simple guidelines offered.  The provisions under the act aim to facilitate an environment of procedural fairness for all parties of an employment relationship. Should the provisions be followed, the convening and outcome of disciplinary hearings can be executed smoothly.