Disciplinary Hearings

All you need to know about disciplinary hearings:

Non-attendance and requests to postpone

Employers and employees (and their companions) should make every effort to attend a disciplinary hearing (paragraph 12, Acas Code).

However, employees often seek to postpone disciplinary hearings, either through their desire to have more time to consider their position or as a result of illness or non-availability of themselves or their chosen companion.

If an employee fails to attend the first meeting arranged, it will usually be good practice for the employer to re-arrange the meeting to an alternative date in order to give the employee a further chance to attend (see page 19, the non-statutory Acas guide).

Where an employee is persistently unable or unwilling to attend without good cause, the Acas Code states that the “employer should make a decision on the evidence available” (paragraph 25, Acas Code).

The statutory rules with regard to re-arranging hearings where a companion is unable to attend are slightly different (see Right to be accompanied).

Ill-health and stress

A common problem for employers is that of the employee who, on being told to attend a disciplinary hearing, absents themselves by reason of ill-health, frequently citing stress as the cause.

The employer then has two conflicting priorities. On the one hand, there is a need to ensure that matters are dealt with speedily, particularly if it is a serious case in which other employees’ interests are involved. On the other hand, the employee may genuinely not be well enough to attend a hearing (see Fit to attend? The role of occupational health).

One issue that should be considered at this stage is: could stress, anxiety or depression actually have caused or contributed to the misconduct? This is one of the reasons for considering obtaining an occupational health report.

If the employee is still absent after a period of time the employer may, subject to the employee’s consent, obtain medical advice as to whether the employee is fit to attend a disciplinary hearing and, if not, when they are likely to be.

This may be obtained from either the employee’s own GP or an independent doctor such as an occupational health physician (OHP).

Sometimes the employment contract may contain a clause requiring the employee to submit to a medical examination. This does not override the need for explicit consent. Failure to consent on the part of the employee may be misconduct, but this is unlikely on its own to give the employer grounds for dismissal.

Fit to attend? The role of occupational health

Unless the employer feels the problem will resolve itself in a couple of weeks, they may be well advised to consult an occupational health physician (OHP) with a view to obtaining a medical report.

Employees often expect that by getting themselves signed off with stress they can avoid disciplinary proceedings. However, the medical view is often rather different.

The DWP’s Health and Work Handbook states that:

”In these circumstances it is likely that the effects of an unresolved dispute on the employee’s mental health may be greater if the proceedings are postponed. An employee may be unfit for work but fit to engage with the management process. The doctor or nurse will have to assess whether attendance is likely to cause serious deterioration in the employee’s mental or physical health, for example if there is a significant risk of suicide.” (Emphasis added.)

An OHP is only likely to recommend the disciplinary hearing be postponed if:

the employee is unable to understand the allegations made against them
the employee does not have the ability to distinguish right from wrong
the employee is unable to instruct a friend or representative to represent their interests
the employee does not have the ability to understand and follow the proceedings, if necessary with extra time and a written explanation

In most other cases, the OHP is likely to recommend going ahead, although they may recommend adjustments.

They may explain to the employee that seeking to prolong the process by postponing the hearing is not without its own mental health risks.

This may have the effect of persuading the employee to attend the hearing. If not, there is no way to compel their attendance and the employer may have to proceed by some other means.

Holding a hearing in the employee’s absence

The employer may decide that the matter can wait, but should ensure that matters are not allowed to drag on if the predicted return date is constantly being extended.

Things may easily reach the point at which no further delay can be withstood, bearing in mind that the ill employee may not be the only individual with an interest in the matter being resolved, and that the memories of witnesses may fade with time.

In these situations, the employer must take a decision. In a minor case, it may decide simply to let matters drop in the interests of rehabilitating the employee as soon as possible. However, if the matter is more serious, the employer may simply have to find alternative means of proceeding.

Consideration can be given to alternative ways of conducting the disciplinary hearing, such as by telephone, at a neutral place or location nearer the employee’s home address, or even inviting the employee to submit written submissions and holding a hearing in their absence.

They would still have the right to appeal the decision and a full rehearing could be held at that stage if requested and appropriate. The employer may also agree to the employee bringing a friend or family member, rather than restricting them to a colleague or trade union representative (see Right to be accompanied).

Ultimately, unless alternative arrangements can be reached, the need for a timely resolution may compel the employer to hold a disciplinary hearing in the employee’s absence and make a decision on the basis of all the evidence available. Ordinarily, fairness would require the employer to tell the employee that it will be proceeding in their absence.

Chair person

Where practicable, it is important to ensure that the individual holding the disciplinary hearing is not the person who also conducted the investigation (paragraph 6, Acas Code; see Who should conduct the investigation?).

Otherwise, the decision-maker may not be seen to be impartial. If the employee has been suspended it is also preferable in a larger organisation if the person who took the decision to suspend is not conducting the disciplinary hearing, for the same reason.

Small employers, particularly those without their own HR departments sometimes delegate the disciplinary process to external consultants. Consultants may take charge of a disciplinary investigation, or in some cases may conduct disciplinary hearings and appeals. This may assist with ensuring impartiality.

Record keeper

Where possible, in addition to the person conducting the meeting, it is advisable to have a second person present from the employer’s point of view, who can take notes (see Record-keeping).

The non-statutory Acas guide recommends that this is someone not previously involved in the case.

In larger employers this person is often an HR representative who can also advise the manager on any procedural points as they arise.

Although the employee may often have their own companion at a disciplinary hearing who takes their own notes, it is good practice to ensure that the employee is provided with a copy of the employer’s notes. (See also Minutes of hearings.)

How to conduct the hearing

For guidance on how to conduct the disciplinary hearing click >>here<<

Adjourning for further investigation or decision

Once both sides of the case have been presented and there are no further questions, the hearing should ideally be adjourned.

Issues that have been raised by the employee may require further investigation and witnesses may need to be re-interviewed if they have not been present to give evidence at the hearing.

If new information has come to light then this should be given to the employee in writing, with sufficient time to consider it before giving the employee the opportunity to respond at a reconvened hearing.

Even if there is no need for further investigation and the employer has an idea as to the sanction it wishes to impose, it is always good practice to adjourn the meeting to consider the decision. This ensures that proper consideration is given to what has been discussed at the meeting and that the employee can see that they have been treated fairly and reasonably. Announcing the decision immediately after the employee has finished speaking would suggest a predetermined outcome.

The length of the adjournment will depend on the complexity of the issues to be considered and whether further investigation is needed. The employee should be given an indication of how long it is likely to be before the meeting is reconvened to communicate the decision.

Should cross-examination of witnesses be allowed?

One issue that often arises is whether witnesses should attend disciplinary hearings and, if so, whether the employer should allow the employee or his companion to cross-examine the witness on points where evidence conflicts.

The Acas Code states that:

”the employee should be given a reasonable opportunity to… call relevant witnesses. They should also be given an opportunity to raise points about any information provided by witnesses. Where an employer or employee intends to call relevant witnesses they should give advance notice that they intend to do this” (paragraph 12).

The employment tribunals and the appeal courts have been at great pains over the years to emphasise that a disciplinary hearing is not a quasi-judicial hearing. However, there is some debate as to whether refusing to allow the employee to cross examine witnesses could be considered unreasonable and therefore potentially lead to successful claims of unfair dismissal. The question ultimately comes down to ‘reasonableness’ in light of the relevant circumstances.

Right to be accompanied

Sections 10 to 15 of ERelA 1999 set out the right for workers and employees to be accompanied by a trade union representative or a fellow worker at a disciplinary hearing and the protections afforded to those who exercise, or attempt to exercise, that right.

In addition to being entitled to bring a tribunal claim if their employer fails, or threatens to fail, to comply with the worker’s right to be accompanied workers are protected from being subjected to a detriment or being dismissed because they have exercised or sought to exercise this right (section 12, ERelA 1999).

Exercise of the right is considered in paragraphs 13 to 16 of the Acas Code.

When the right applies

The right to be accompanied applies if a worker:

• Is required or invited to attend a disciplinary hearing by their employer; and
• Reasonably requests to be accompanied at the hearing.
(Section 10(1), ERelA 1999.)

When the right applies, the employer must permit the worker to be accompanied at the hearing by one companion who has been chosen by the worker from within the categories specified in the legislation, see Choice of companion (section 10(2A), ERelA 1999).

Disciplinary hearings for the purposes of this right are hearings that could result in:

A formal warning being issued to a worker;
The taking of some other disciplinary action, such as suspension without pay, demotion or dismissal; or
The confirmation of a warning or some other disciplinary action, (as would be the case with an appeal hearing). (Section 13(4), ERelA 1999.)

The right to be accompanied applies to capability as well as misconduct hearings. However, meetings merely to investigate allegations are not “disciplinary hearings” because they should not themselves result in disciplinary action.

Reasonable requests to be accompanied

The right to be accompanied only applies if a worker reasonably requests to be accompanied at the hearing (section 10(1)(a), ERelA 1999). The legislation does not address the question of when such a request would not be reasonable. However, case law has established that the reasonableness requirement does not extend to the choice of companion (see Choice of companion).

Choice of companion

The companion should be someone who is either:

• Employed by the trade union of which they are an official;
• Any other official of a trade union whom the union has reasonably certified in writing as having appropriate experience of, or as having received training in, acting as a worker’s companion at such hearings; or
• Another of the employer’s workers.
(Section 10(3), ERelA 1999.)

The worker who is subject to the disciplinary hearing does not have to be a member of the trade union to which the official belongs and the trade union in question does not need to be one that is recognised by the employer.

An employer cannot deny the worker their choice of companion as long as the companion falls within the three categories above. Accordingly, for example, if an employee requests to be accompanied by someone who falls within one of the three categories, the employer cannot refuse the request on the grounds that companion’s presence might prejudice the disciplinary hearing.

The non-statutory Acas guide makes the point that an employer could allow a companion from outside of the three categories, although is not obliged under the ERelA 1999 to do so.

There is no general right to bring a lawyer to a disciplinary or grievance hearing. However, there may be circumstances in which this is appropriate (see Legal representation).

Rights of the companion

A worker (whether or not they are also a trade union official) has a right to paid time off during working hours to act as a companion to another worker at a disciplinary hearing (section 10(6)-(7), ERelA 1999).

They must not be subject to any detriment or dismissed because they have acted (or sought to act) as a companion (section 12(1)(b), ERelA 1999).

Unavailability of companion

Where an employee’s chosen companion is unavailable at the time proposed for the hearing by the employer, the employee has the right to suggest an alternative time which is not more than five working days later.

If that time is reasonable the employer must rearrange the hearing for that time. (Section 10(4)-(5), ERelA 1999.)

There is no guidance on what would be “reasonable” in this context, but it would presumably not be reasonable if the employer’s key personnel are unavailable at that time. In practice it would be advisable for an employee (or their companion) to give a range of available times, or for the parties to seek to agree a time.

Where the employee’s chosen companion is not available for the meeting to be rearranged within five working days of the original time proposed, the employer should ordinarily consider rearranging the meeting for a later time when the companion is available.

Role of companion

The role of the companion is limited. The companion is permitted to address the disciplinary hearing (including putting the worker’s case, summing up, and responding on the worker’s behalf to any view expressed at the hearing) and to confer with the worker during the hearing (section 10(2B), ERelA 1999).

There is no right to answer questions on behalf of the worker, address the hearing contrary to the worker’s express wishes, or act in a way that prevents the employer explaining its case or prevents any other person making a contribution to it (section 10(2C), ERelA 1999).

The non-statutory Acas guide does say, however, that it is good practice to allow the companion to participate as fully as possible in the hearing, including asking witnesses questions (page 26).

Remedies for breach of the right to be accompanied

A worker is entitled to bring a tribunal claim if their employer fails, or threatens to fail, to comply with their right to be accompanied (section 11(1), ERelA 1999).

A claim must be presented within three months of the date of the failure or threat, subject to any extension following participation in Acas early conciliation.

Where a tribunal upholds a claim, it must order the employer to pay compensation to the worker of up to two weeks’ pay (section 11(3), ERelA 1999). The statutory maximum on a week’s pay applies (section 11(5), ERelA 1999).

A tribunal could potentially increase the compensation awarded to the employee by up to 25% if it considers the employer has unreasonably failed to follow that part of the Code (section 207A, Trade Union and Labour Relations (Consolidation) Act 1992).

Legal representation

There is no general right under UK law for an employee to have a qualified legal representative at a disciplinary hearing; only a colleague or union representative (see Right to be accompanied).

However:

Some employees (for example, NHS hospital doctors) may have a right under their contracts of employment
If the employee is disabled it may be a reasonable adjustment to allow them to be accompanied by someone other than a colleague or union representative. In theory this could include a lawyer.
Employees may be able to establish a right to legal representation as a result of the Human Rights Act 1998 (HRA 1998) which enshrines Article 6 of the European Convention on Human Rights (the right to a fair trial) into UK law (see Article 6: legal representation).

Disciplinary matters involving police investigations and criminal prosecutions

For guidance click >>here<<

The decision

There are two main components to the decision:

does the employer uphold the allegations of misconduct and,
if it does, what sanction does the employer impose as a result?

When the employer has to make a decision on conflicting evidence, it may be tempting to conclude that a witness has no reason to lie, and therefore must be telling the truth. An employer may therefore be inclined to find against the accused employee, because a finding in their favour could suggest that they think the witness is lying and therefore send “the wrong message”.

However an employer, faced with a conflict of evidence, does not always have to decide whether it “believes” or “disbelieves” one person over another.

It could reach a decision that this is merely a difference of perception, and that both parties are telling the truth as they see it.

Or it could find that the conflict is such that it cannot be resolved. In the latter case, the allegations will not be proved and the accused employee will have the benefit of the doubt, without the employer necessarily having to imply that the other witnesses were lying.

If the employer does uphold the allegations, most disciplinary procedures provide for a first written warning, a final written warning, dismissal with notice or summary dismissal. Some procedures also allow for action short of dismissal, such as demotion.

Dismissal

If the employer is considering dismissal, it must ensure that it satisfies all the requirements of fairness under section 98(4) of the ERA 1996.

Employers have often lost cases where, despite having followed a fair procedure, they have not persuaded an employment tribunal that they had reasonable grounds for believing that the employee was guilty of misconduct or that dismissal was within the band of reasonable responses (see Fair dismissal).

Warnings

Giving a warning, as opposed to dismissing, is also not without its risks.

The Acas Code recommends that employees should usually be given at least one chance to improve (in other words, a warning) before a final written warning is given (paragraph 18).

Employers may be in breach of the implied term of mutual trust and confidence if warnings, especially final warnings, are used oppressively for relatively minor misconduct, if the punishment given is out of proportion to the offence, or if the employer does not genuinely believe the employee to be guilty of the offence.

Live and expired warnings

Case law on warnings often concerns the impact of previous warnings on the choice of sanction for a further act of misconduct. When deciding the appropriate penalty, the starting position is that employers can take into account any live warning on the employee’s personnel file, but may only take into account any expired warning (and the underlying misconduct) where this is not the principal reason for any subsequent dismissal; in other words, where the circumstances justified dismissal anyway.

Length of warnings

Employers should take care when giving warnings, particularly final warnings, to tailor them to the particular circumstances – as indeed this employer did in other contexts. The Acas Code indicates that although final warnings should normally have a time limit of 12 months, that need not always be so.

There is no reason why it should not be longer if the nature of the misconduct justifies it, and in particular if the imposition of a lesser penalty is an act of leniency.

The current Acas Code does not set out guidance on the length of warnings. It merely requires employers to state the period for which a warning will remain active.

The non-statutory Acas guide gives guidance on appropriate periods at pages 33-34. It states that warnings would “normally” be live only for a set period (for instance, six months for a first written warning and 12 months for a final written warning) but does not rule out the possibility of an unlimited warning in appropriate cases, particularly where an employee has a history of allowing their conduct to lapse just after the expiry of warnings.

Warnings when employee going on maternity or sick leave

If the employer effectively “stops the clock” on a 12 month final written warning because an employee will be on maternity leave for that period the employee may argue that this amounts to unfavourable treatment because of her pregnancy or maternity and is discriminatory.

Likewise, the same argument may apply if the employer extends the period of the warning to 24 months, for example. There may be similar disability discrimination issues if an employee is on long-term sick leave and potentially disabled.

In these circumstances, the best course of action may be to wait until the employee returns from maternity or sick leave and address any new instances of misconduct as and when they arise.

From the employer’s perspective, a final written warning which is live whilst an employee is absent from work raises the question of how an employer can assess performance or the employee’s conduct during that period. However, an employer may be able to rely on expired warnings when determining a disciplinary sanction for future misconduct, provided the future misconduct is a dismissible offence in its own right.

Demotion or other sanctions

If considering dismissal, the employer should ensure it has given thought as to whether there are any other possible alternatives to dismissal, such as a demotion, redeployment or a final written warning.

The employer could provide for a number of types of sanction, including transferring the employee to another job, demoting them, fining them (for example, by not paying a bonus) or suspending them without pay. However, taking such steps without a contractual right to do so could result in claims.

Demoting an employee without sufficient reason may constitute a breach of mutual trust and confidence but a demotion is in any event likely to be a breach of the express terms of the contract, unless it is specifically permitted in the contract or the employee gives their consent to it.

If the contract does not allow a sanction of this type without consent, the employer may nevertheless decide to present it to the employee as an alternative to dismissal, which the employee may accept. It is possible that the employee could argue that the threat of “accept it or be dismissed” was itself a repudiatory breach by the employer, although whether this is successful would depend on the tribunal’s view of the facts.

Communicating the decision

The employee must be informed, without unreasonable delay, of the employer’s decision and their right of appeal.

Although the Acas Code (at paragraph 17) requires this to be in writing, it is good practice, once the employer has reached a decision, to reconvene the meeting and explain the decision to the employee face to face.

If the employee is being dismissed, they would also have the right to ask for a written statement of the reasons for dismissal in any case (section 92, ERA 1996).

Warning letters

If a warning is given, the letter confirming the decision should:

Clearly set out the allegations against the employee, the findings in relation to each allegation, the factual basis and the reasons for the decision. The employee should be in no doubt as to what action is being taken.
Confirm whether there are any previous live warnings on the employee’s file and whether these have been taken into account.
Clearly state the period that any warning is to remain in force, ideally giving a date on which it will expire and explaining the possible consequences of any further misconduct or continuing unsatisfactory performance.
If there is a possibility that the “live” period of the warning may be extended if the employee’s conduct or performance does not improve sufficiently this must be made clear to the employee.
State the level of warning, for example, first written warning or final written warning.
Advise the employee as to how and where the warning will be stored and whether it will be removed from their personnel file once it has expired (see Should spent warnings be kept on file?, below).
Provide instructions on how to appeal, including the name of the person to whom the appeal must be submitted and the deadline by which the appeal should be received.

Dismissal letters

If the employer has decided to dismiss, the letter confirming the decision should:

Clearly set out the allegations against the employee, the findings in relation to each allegation, the factual basis and the reason the employer has reached the decision to dismiss.
Refer to any relevant previous warnings given.
Confirm the employee’s termination date and whether their employment is terminated with or without notice. If notice is given, the letter should confirm whether the employee is required to work their notice, or whether they will be placed on garden leave for all or part of the notice period. If the employment is terminated with immediate effect, the letter should specify whether a payment in lieu of notice will be made, or whether the employer considers there is no notice entitlement because the employee has been dismissed for gross misconduct.
Confirm the employee’s pro rata holiday entitlement up to the termination date and whether the employee is entitled to a payment in lieu of accrued but untaken holiday, or whether the employee has taken holiday in excess of their pro rata entitlement to the termination date and a deduction from their final salary will be made.
Provide instructions on how to appeal, including the name of the person to whom the appeal must be submitted and the deadline by which the appeal should be received.

Disciplining twice for the same conduct

It will only be in exceptional circumstances that an employer will be justified in disciplining an employee more than once for the same conduct, unless new information or evidence has come to light.

Appeals

It is important to provide a right of appeal.

It is good practice to advise an employee in writing of the right of appeal, when the employer’s decision is communicated. Any deadline to lodge the appeal should also be stated.

The non-statutory Acas guide recommends five working days as a reasonable time limit (page 34), although the Acas Code itself does not specify a time limit and employers should therefore ensure they consider all the surrounding circumstances before rejecting an appeal as out of time.

The employer should ensure that it complies with the appeal requirements set out in any contractual procedure. Failure to do so could constitute grounds for a successful constructive dismissal claim.

If an employee does not appeal, but submits an application to the employment tribunal for unfair dismissal instead, the employment tribunal may reduce any compensatory award by up to 25%, if it decides the failure to appeal was unreasonable and it is just and equitable in all the circumstances to make a reduction.

Impartiality when conducting an appeal

So far as is possible, any appeal against, or review of, the dismissal or disciplinary sanction should be dealt with impartially by someone not previously involved in the case (paragraph 26, Acas Code).

Prior dealings of a general nature with the employee or witnesses should not, in themselves, give rise to a suggestion of bias.

Ideally, the person hearing the appeal should be more senior than the person responsible for making the decision to dismiss or imposing the disciplinary sanction in the first instance (page 34, non-statutory Acas guide).

It should certainly not be someone less senior, who might simply defer to the decision of his superior.

It is also good practice for the person hearing the appeal to be outside the reporting line of the person who conducted the disciplinary hearing. This will help avoid allegations that the manager responsible for the appeal was biased, or simply supported their subordinate’s decision as a matter of course, rather than considering the matter afresh or properly reviewing the decision.

A more flexible approach may be adopted where an appeal is heard by a panel.

Appeal procedure

The employee should be asked to state their full grounds of appeal. The Acas Code requires that this be done in writing (para 26).

One of the issues which often arises at this stage is whether the appeal will be a review of the decision and evidence available at the original hearing or whether it will be a full rehearing (see Can procedural defects be corrected on appeal? below for the implications of the distinction).

In practice, seeking to categorise appeal hearings in this way can be unhelpful.

”the distinction between a review and a rehearing is hard to define in the abstract and even harder to apply in practice … What matters is not whether the internal appeal was technically a rehearing or a review but whether the disciplinary process as a whole was fair.”
Court of Appeal in Taylor v OCS Group Ltd [2006]

What matters is whether the disciplinary process as a whole was fair. Where an early stage of a process had been defective or unfair, subsequent stages would require particular careful examination in order to determine whether overall the process had been fair.

The manager conducting the appeal should have access to the evidence compiled during the investigation and copies of the notes from the disciplinary meeting.

However, he should not confer with the initial decision-maker prior to the appeal meeting as this may lead to a biased view being taken before the employee has presented his arguments on appeal.

Employees have the same right to be accompanied at a disciplinary appeal as at an initial disciplinary meeting (see Right to be accompanied).

Can procedural defects be corrected on appeal?

It is possible that procedural defects in an initial disciplinary hearing may be remedied on appeal, provided that the appeal is sufficiently comprehensive.

However, defects in the appeal procedure itself will not necessarily render unfair a dismissal that had, up to that point, been fair.

External appeal panel

Although there is no obligation to do so under the Acas Code, occasionally some employers will refer appeals to an external independent panel.

It is usually small employers who do this where there is a lack of management level employees to hear the appeal. Where an independent panel has been used, it will not necessarily be unreasonable for the employer to stick to its original decision, depending on its reasons for not implementing the panel’s decision.

New evidence at the appeal stage

If new evidence arises during the course of the appeal, the employee, or their companion if they prefer, should be given the opportunity to comment on it before a decision on the appeal is taken (page 34, non-statutory Acas guide).

New evidence arising at the appeal stage may be taken into account in justifying a dismissal, even if the evidence available at the initial disciplinary hearing would not have justified it.

Equally, an employer may act unreasonably in maintaining a decision that was justified on the facts known at the time of dismissal but which could not be sustained in light of the facts available on appeal.

It is not the employee’s job to raise all procedural defects with the original disciplinary procedure with the appeal panel; it is for the employer to uncover them.

“it cannot be enough for an employer to say that although a fair procedure was not adopted, the responsibility for failing to remedy it lies at the door of the employee for failing to alert him to the error”
Crawford and another v Suffolk Mental Health Partnership NHS Trust [2012]

Increasing the sanction at the appeal stage

It is not open to an employer to change a final written warning to a dismissal, unless its disciplinary procedure specifically allows it to increase a sanction on appeal. There is nothing to prevent employers providing for an express power to increase the sanction on appeal.

However, the non-statutory Acas guide warns against appeals being used as an opportunity to punish employees for appealing the original decision, stating that “it should not result in any increase in penalty as this may deter individuals from appealing” (page 34).

Record-keeping

Records should be made of all disciplinary proceedings. These records should include:

Details of the allegation(s) and the sanction imposed.
Details of the investigation that was carried out and information which came to light as a result.
Copies of correspondence sent to the employee with the statements sent and other documents.
Notes from the disciplinary hearing and any appeal hearing.
So far as possible, the rationale for decisions taken at various stages.

The more contemporaneous the notes, the easier it will be to recollect events and decisions taken at the time.

Records kept should be clear and concise, bearing in mind that it may be necessary not only to refer to them, but also to produce them during the course of any subsequent disciplinary hearing or tribunal proceedings, or if the employee makes a subject access request.

Keeping records of the investigation carried out is vital. It allows the employer to show that they have carried out a reasonable and thorough investigation, which will be necessary in establishing that any dismissal is fair.

Some employers may wish to arrange for a minute taker to be present at disciplinary and appeal meetings and for minutes to be supplied to attendees following the meetings. It is not advisable to provide for these minutes to be “agreed” by the employee involved as this could lead to major delays and disputes. The employee could instead be asked to register any comments and if the comments are not agreed by the employer, a note of the points in dispute can simply be appended to the minutes.

When deliberating in private, disciplinary or investigatory panels might consider keeping a confidential note of any reasoning if they are concerned that allegations of discrimination may be made in the future. Whilst such a note would not form part of the minutes provided to the employee, it could be produced to defend any allegations if matters proceed to litigation.

Nevertheless, if a note is being made, the panel must ensure that it discusses the case carefully and that the note reflects this. Failure to do so might suggest, for example, that the disciplinary panel did not engage sufficiently with the employee’s case, which in turn could suggest that the decision was pre-determined (and so unfair).

Covert recording of hearings

When an employee secretly records an internal meeting or hearing with the employer, the general rule is that the recording of any parts of the meeting where the employee was present may be admissible before an employment tribunal if the tribunal believes it is relevant; but any covert recording of any private discussions of the employer’s disciplinary panel will not be admissible on the grounds of public policy.

In practical terms, employers may wish to ensure that their disciplinary procedures or staff handbook expressly prohibit employees from recording hearings without permission. This will undoubtedly assist with establishing clear “ground rules” for the conduct of hearings.

Some employers at the start of a disciplinary or investigatory meeting will inform the employee that they must not record the meeting without permission and ask them to confirm that they are not doing so. However, while these steps may mean that an employee who covertly records a meeting might be guilty of misconduct (for which they can be separately disciplined), it does not necessarily mean that the recording itself is inadmissible in evidence.

Should spent warnings be kept on file?

Employers may (and often do) state in warning letters or in the disciplinary/capability procedure itself that warnings will be removed altogether from the employee’s record after a certain length of time. This is not required as a matter of law and may not be in the employer’s best interests.

It could also create an administrative burden. Even though the warning may be “spent” as far as future disciplinary action is concerned, there are limited circumstances in which a spent warning may be taken into account (see Warnings).

There are also further reasons for keeping a record of the offence and the fact that a warning was given, particularly in misconduct cases. For example:

When deciding whom to promote the employer may wish to take account of the candidates’ full disciplinary or capability records.
It may be necessary when giving a reference to consider the employee’s full disciplinary or capability record, so as not to mislead the recipient.
In establishing a defence to a harassment claim, the employer may need to show that it has taken a consistent line in the past in dealing with complaints of harassment.

Disciplinary records going back a lot further than the usual six (or 12) month duration of a warning will often be invaluable in such cases.

The Employment Practices Code, issued by the Information Commissioner, states that where disciplinary procedures provide for warnings to “expire” it should be made clear whether the warning is removed entirely from the record or is simply disregarded in determining a future disciplinary penalty.

If the former, a diary system or other suitable arrangements should be put in place to ensure that deletion actually takes place at the appropriate time (paragraph 2.13.3, Employment Practices Code).