Disciplinary

The most common reason employees get in touch with us is because they find themselves facing a disciplinary - at times merited, but on some occasions because the employer is using the procedure to manage the employee out of the business. Regardless of the motivations behind it, the employer will need to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures https://www.acas.org.uk/acas-code-of-practice-for-disciplinary-and-grievance-procedures/html

There are different stages within the process to ensure the employer acts reasonably and fairly. Sometimes this involves an investigation meeting to decide whether a formal disciplinary hearing is required or whether the issue can be dealt with informally in cases of minor misconduct. In some case, you may be suspended on full pay, until the matter reaches conclusion. Although employers argue that suspension is a neutral act, for you it certainly is not. It feels like a punishment before you’ve had the chance to defend yourself and isn’t always reasonable. We can help you raise a Grievance if suspension has been imposed unfairly, or at least put this in the written statement demonstrating why the case against you is unreasonable.

The investigation report, if there is one and the whole process should be undertaken in a balanced, fair and reasonable manner, looking for both reasons for and against. We see many cases where investigation reports are one-sided and leave the Disciplinary Hearing Manager little room for manoeuvre, as the organisation has already made up its mind. We can help with that, by calling this out on your behalf and undermining their arguments. The Investigator’s role is not to make a decision on whether the allegations should be upheld or what sanction should be put in place. Their role is to investigate and decide whether there is a possible case to answer at a disciplinary hearing.

You might be thinking, what the point of going through the process of defending your position is if the employer has already made up its mind? It’s important because by calling this out succinctly it undoes the employer’s case which can help to settle your case if that is what you want; enabling you to get an agreed reference and potentially compensation. As a minimum, it will leave a record of the unfairness in the employer’s case so that an Employment Tribunal can see the deficiencies in the employer’s case if required. Equally, making valid points to undermine the case against you, countering their evidence and demonstrating that on balance, the allegations against you are not true could save your job.

It is important to know your rights to ensure your case is dealt with fairly. This includes the following:

To be provided the specific allegations (usually in the disciplinary invitation letter) in writing in advance of the hearing.

The exact details of where and when the meeting is scheduled for, who will attend and what their role in the meeting will be.

The invitation letter should provide the potential maximum penalty of the case if the allegations are upheld.

To be provided all the relevant evidence including any policies you are alleged to have breached in advance of the hearing to allow you to prepare for the hearing.

To be given reasonable advance notice to enable you to prepare for the meeting.

The right to call relevant witnesses to be questioned (this isn’t always a good idea and should be carefully considered - your Employee HR Trade Union Representative can help decide)

Having an impartial Hearing Manager allocated to the case. If the individual allocated by the company does not appear impartial, for example if they conducted the investigation part of the process, you can request a change of Hearing Manager.

The right of accompaniment at a formal hearing, where a formal sanction such as a warning or dismissal could be the outcome of it. This is a statutory right, which allows you to bring your chosen companion who can be a fellow worker from that company or a Trade Union Official/Representative to accompany you - Employment Relations Act 1999, Section 10:

https://www.legislation.gov.uk/ukpga/1999/26/section/10

Always prepare for the disciplinary in advance and it is useful to prepare a written statement of defence setting out your case in response to the allegations. This ensures that your side of the case is put succinctly in writing so that your words cannot be misconstrued. This should be done once you have received all the evidence against you and you know exactly what the allegations are - otherwise you could open up an area the employer had not intended to put against you.

We can help you prepare your case by meticulously going through the evidence with you in advance and preparing the statement to present on your behalf at the meeting. This will respond to the allegations, counter any evidence put forward by witnesses, reiterate the law, point out where the employer may be going wrong and treating you unfairly and ensure your case is presented to try to get the outcome you want, rather than be pushed into resignation or accepting something that is unreasonable.

By having a Trade Union Representative who is experienced, knowledgeable and importantly not subject to the employer’s politics can be the difference for your career