One of the main effects of the new Employment Act was to regulate the conduct of disciplinary hearings. In this month’s feature article, we consider the extent to which this will change employers’ approaches to employee discipline and lead to more uniformity of practice.
Where dismissal is the outcome of a disciplinary procedure, an employer’s failure to comply with the minimum procedures will lead to the dismissal being automatically unfair, leading in turn to hefty financial penalties;
- to set out in writing the basis for the disciplinary action, intimate it to the employee and invite them to attend a meeting to discuss the matter;
- to then meet with the employee to discuss the matter. The meeting must not take place before the employee has had a reasonable opportunity to consider his response;
- if the employee wishes to appeal, to invite them to attend a further meeting to discuss the matter;
- if the employee chooses to be accompanied, to permit the companion to address the hearing to put the employee’s case, sum up that case, respond to any view expressed at the hearing and confer with the employee during the hearing.
All documentation and evidence gathered during the investigation should be intimated to the employee when inviting them to attend the disciplinary meeting.
Make sure that the information is provided in an accessible manner. For example, witness statements should normally be typed out.
Any material which could have a bearing on your decision should be supplied, whether incriminating, exonerating or neutral. Where practical, no information should be withheld. If new information comes to light between intimating the disciplinary meeting and the meeting itself, then send the new information to the employee as soon as possible.
It is essential that the employee has had a reasonable opportunity to review the information and consider his response. The more complicated or detailed the information, the more time will be required.
Check the wording of your existing procedures to ensure that they remain compliant and consistent with the minimum statutory requirements.