If you are required to attend a disciplinary meeting, it is important that you are well-prepared, aware of your rights and, ideally, able to count upon high quality advice, support and representation.
Here we examine what happens if you find yourself facing disciplinary proceedings and what support you can receive.
The importance of getting things right
You should never take lightly being asked by your employer to attend an investigatory or disciplinary meeting.
After all, you could be at risk of a number of different outcomes:
- Suspension from work while investigations continue.
- A range of sanctions – from warnings on your future conduct, to financial penalties or downgrading.
- Dismissal – either with or without notice.
How effectively your case is prepared and presented really could have a huge impact upon the outcome. This is why it is best that you are professionally represented. Your employer will then be unable to get away with cutting corners or treating you unfairly. You can present your version of events in a clear, effective and persuasive way. And there will be far less chance that you will be harangued if you have someone beside you fighting your corner.
We know of plenty of people who wished they had not attended investigatory or disciplinary meetings on their own. Some have felt intimidated by the imbalance in numbers – often facing two or three people on their own. Others have felt bullied. Or concerned that what has been said at the meeting is subsequently misrepresented or distorted!
In fact, having someone representing you may be enough to persuade your employer to drop weak or unnecessary cases. Or try to reach a settlement.
What’s more, you want to be sure that the correct procedures are followed. This is important if you are subsequently found to have been unfairly dismissed. The compensation you receive from an Employment Tribunal can be adjusted up or down by up to 25%; depending upon whether you or your employer complied with the ACAS Code of Practice when handling your case.
Types of disciplinary meeting
As part of a disciplinary process, there are several different types of meeting you could be asked to attend:
- Investigatory meeting. Here, your employer will be collecting evidence to decide whether there are grounds for a disciplinary charge. You will be asked questions relating to the potential disciplinary matter. But you must not be presented with any specific allegations. You possibly may not have a right to be accompanied – although this will depend on the circumstances.
- Informal meeting. This may be held if your employer has a concern which, at this point, isn’t sufficiently serious to warrant a formal disciplinary warning or penalty. It may be that your employer is letting you know that it requires changes by you to avoid having to face formal proceedings. Or it could be that at this stage it is still deciding whether to charge you with breaching your contract of employment. No charges are permitted, nor penalties imposed, at such meetings. You have no right to be accompanied (although good employers may permit it).
- Formal Disciplinary Meeting. Such meeting should be arranged in advance. You should be given written notice of the charges being considered against you. This must include what you are alleged to have done wrong and which parts of your contract you are said to have breached. You must also be provided with the opportunity to formally respond. It is here that a sanction may be imposed. You have a legal right to be accompanied by either a colleague or representative of a union.
Under certain circumstances you could be suspended from work following either an Informal or Investigatory meeting. But this is only if your employer genuinely believes there is a ‘risk’ involved in you continuing to work before your case is examined further, or you attend a Formal Disciplinary Meeting.
Notification of disciplinary meeting
Your employer must confirm in writing the fact it wants you to attend a Disciplinary Meeting. In this letter you should be provided with:
- Confirmation of the nature of the meeting (i.e. whether Investigatory, Informal or Formal).
- The date, time and location of the meeting.
- Who will be holding the meeting and, where applicable, who will also be attending to take a written record.
Furthermore, in the case of Formal Disciplinary Hearings, you should also receive:
- A minimum of 2 working days’ notice, with the option to arrange an alternative date where necessary to enable your representative to attend.
- Your legal right to be accompanied by either a work colleague or an accredited representative of trade union.
- The allegation(s) you will be asked to respond to.
- Which company policies you are alleged to have breached.
- Whether you are being charged with Misconduct or Gross Misconduct and extent of the possible sanctions that could be applied if the charge(s) are upheld.
- Minutes of meetings held as part of the disciplinary process, witness statements and any other evidence that may be given consideration during the Hearing Manager’s deliberations on your case.
- The company’s disciplinary policy and any other policies or procedures that it is alleged you are in breach of.
If any documentation you believe you are entitled to is not provided, you should notify your employer in advance of the meeting. Insist it is made available to you in good time before the disciplinary meeting is held.
There is no tactical value in trying to catch your employer out by only pointing out its omissions at the disciplinary meeting! Of course, if you raise a legitimate concern which your employer ignores, this could expose it to future risks.
Types of disciplinary charges
There are two different forms of disciplinary charges you could potentially face:
Misconduct – where it is suggested you have acted improperly. You may have conducted a minor breach of your contract, but not to the extent that you could potentially be dismissed. You may receive some modest penalty. This could include a warning that a repetition with 6 or 12 months could be treated as Gross Misconduct.
Gross Misconduct – in more serious circumstances, or if you are already on a misconduct warning. If the charge is upheld, you could be dismissed or receive some other penalty short of dismissal.
Whether Disciplinary proceedings are handled fairly will be governed by four things:
- Your terms and conditions of employment;
- Your employer’s policies and procedures that are relevant to your case;
- The ACAS Code of Practice and employment law;
- The reasonableness of the Hearing Manager’s findings.
Any sanctions must be fair and consistent to those applied by your employer to other staff in similar circumstances.
Disciplinary hearing manager
The ACAS Code of Practice requires that, wherever possible, different people be involved in any investigation, disciplinary hearing and appeal.
Your line manager should not be involved if they are in any way implicated.
Those involved should be able to act impartially and be either at the same or a more senior level of authority to your line manager. It is accepted that this may not always be possible in very small organisations. But in larger ones, the people involved should be from a completely different area.
Right to be accompanied
Wherever possible, it is important that you exercise your legal right to be accompanied at any formal Disciplinary Hearing.
Otherwise you will find yourself very much on your own – in a serious situation concerning your job. You will be outnumbered by the Hearing Manager and a Note Taker, who may be an experienced HR Representative.
If you do want to be accompanied, in law you have only two options:
- A work colleague (who at least can act as a witness and balance numbers at the meeting, even if they cannot contribute much).
- An accredited official or representative of a trade union. WRS can arrange this for you if you are not already a union member.
You must tell your employer in advance of the meeting if you intend to be accompanied, and by whom.
At the Disciplinary Hearing, your companion can:
- Present and/or sum up your case on your behalf;
- Consult with you during the meeting, guiding you as required;
- But they cannot ordinarily answer questions on your behalf.
Many people attending disciplinary meetings on their own feel at a huge disadvantage. Sometimes they report feeling bullied and harangued. And often meeting notes incorrectly record what was said, with no independent witness to contest this.
In contrast, when they are accompanied, Disciplinary Hearings often taken on a completely different complexion. You will undoubtedly still feel nervous. But you will have an independent witness and moral support. And if your companion is a union professional, you know they can help you navigate through proceedings and ensure your case is presented effectively and persuasively on your behalf.
WRS has published a post providing tips on how to prepare for disciplinary meetings.
Preparation for a disciplinary meeting
Effective preparation is essential. It will be pivotal to determining whether you receive a fair and satisfactory outcome.
If you are supported by WRS, we will ask you to provide:
- Full details on the background
- Your version of events
- Any documentation that will help support your case.
We provide details here of how you should prepare for a disciplinary meeting.
Once we have received your input, using our considerable experience we will prepare a detailed Written Statement for you. This will set out clearly and persuasively your case – and inject any relevant legal and procedural arguments – to maximise your chances of a successful outcome. The content will be discussed and agreed with you several days in advance of the disciplinary meeting to ensure you are happy with the content and that it captures all the relevant points.
The Written Statement that WRS prepares will be as detailed as it needs to be. Whilst typically up to 10 pages long, for complex cases some can stretch to 20 or 30 pages. It will seek to establish a carefully argued narrative focused on the substantive points of your case. It will examine the evidence and seek to dismantle the case against you. It will also explore whether all company and ACAS procedures have been correctly followed.
Even if you acknowledge that you have been at fault, the Written Statement will draw attention to any mitigating factors and seek to limit the severity of any disciplinary penalties that might be applied.
A good, carefully crafted Written Statement can influence or take control over the direction of the Disciplinary Hearing. It also provides a written record of your case, which cannot be misrepresented by notes of the meeting produced by your employer
Finally, if disciplinary proceedings have been handled poorly or unfairly, or you are unhappy with the outcome, your Written Statement will lay the groundwork for any Appeal Hearing and subsequent legal proceedings that you might embark upon.
The disciplinary hearing
Ensure you arrive at the disciplinary meeting location in good time before it commences.
If you are being supported by a union representative provided by WRS, they will meet you beforehand to help put you at ease and prepare you for the meeting.
There should be an impartial Hearing Manager to consider your case. And a Note Taker to prepare minutes of the meeting. That second person might be an HR professional; although they technically shouldn’t participate in questioning you.
The disciplinary meeting should begin with the Hearing Manager introducing everyone attending. They should check you received written details of the allegations, evidence and relevant policies. They should further explain the format of the Hearing and the role of your companion (or formally record your agreement to go ahead without one). Only then will the Hearing Manager detail the charges being considered against you.
You – or your companion – will then be given the opportunity to present your case. If supported by WRS, your union representative will use their considerable experience to methodically and persuasively present your case. It is only at this point – not in advance of the Hearing – that your employer will be given a copy of your Written Statement.
By adopting this approach, your union representative will be able to influence and control the direction of the disciplinary meeting and how your case is understood.
Either during or after presenting your Written Statement, the Hearing Manager may ask you questions. Although your union representative cannot ordinarily answer for you, they will intervene if they object to the tenor or fairness of the questions. They may also prompt you if they feel you have not satisfactorily made your point. And they can even insist upon an adjournment if they feel they need to brief you further.
Whether accompanied by a companion or on your own, you always have a right to seek a temporary adjournment of the meeting should you need time to compose yourself.
Towards the end of the meeting, the Hearing Manager must give you or your companion the opportunity to make a further closing statement. This is the opportunity to summarise again all your key points.
The Hearing Manager will then draw the meeting to a close by summarising both the company’s case against you and your response. They must tell you by when you should receive a copy of the minutes and the Hearing Manager’s outcome (which will rarely be on the same day).
You should receive minutes of the meeting within reasonable time of the meeting, whilst your recollection of what was discussed is still good. This should be no longer than 4 or 5 days.
The minutes need not be a verbatim record. But they must accurately capture details of the key points discussed.
You must check the minutes to ensure that they genuinely are an accurate record of the meeting. If you are to appeal against the outcome or pursue legal proceedings, the minutes will serve as key evidence. You will typically be given no more than a week to respond with your feedback.
If the Hearing Manager agrees that your proposed changes are accurate, the minutes will be amended accordingly. If not, both sets of minutes should be retained – with equal weight given to both versions of events.
Burden of proof
The burden of proof required to justify upholding a Disciplinary Charge – whether it be dismissal or action short of dismissal – is lower than for a criminal charge.
To find you at fault and apply a disciplinary penalty against you, your employer need only show it had:
- Conducted a fair investigation;
- Complied with the requirements of the ACAS Code of Practice;
- Fully considered the facts and possible mitigating factors, and;
- That the Hearing Manager reached their findings on the balance of probability rather than beyond reasonable doubt.
If you were to subsequently challenge the outcome at employment tribunal, consideration would not be given to whether the Hearing Manager’s decision was necessarily right or wrong. Instead, it would be whether the decision was reasonable in the circumstances.
Disciplinary outcome letter
You should receive an Outcome Letter containing the Hearing Manager’s decision within a reasonable period of time following the Disciplinary Meeting. This should normally be within 14 days.
The Outcome Letter should set out the allegations you faced. Summarise your response. And explain what and why the Hearing Manager reached their decision both on each individual charge and overall. If the case against you is upheld, it should also detail the disciplinary penalty being imposed by the Hearing Manager and the reasons why.
If there is a disciplinary penalty, this must be consistent with what you were told could happen in the letter asking you to attend the disciplinary meeting.
Disciplinary penalties could include:
For an upheld charge of Misconduct
- First Written Warning, that will be retained on your HR file for no longer than 12 months
- Final Written Warning, whereby any further charge of ‘ordinary’ Misconduct within a period of up to 12 months might be treated as Gross Misconduct and could result in your dismissal.
- You may also find that you forfeit a right to a pay increase or bonuses.
For an upheld charge of Gross Misconduct
- Suspension without pay
- A reduction in your grade or pay.
- Dismissal, either with or without paid notice.
You should also be given a copy of all witness statements and any other evidence that the Hearing Manager considered during his or her deliberations following the disciplinary meeting.
Finally, you must be advised of your right to Appeal against the Hearing Manager’s decision. You will typically need to submit this in writing within 14 days of receiving the Outcome Letter.
If you decide to Appeal against the Hearing Manager’s decision, your case must be heard by a completely independent person.
This should be someone who is more senior to the Hearing Manager.
To trigger an Appeal, you must detail the reasons why you believe that the Hearing Manager’s Outcome Letter was unreasonable. We advise that, whilst covering all the pertinent points in general terms, you keep the Appeal Letter brief. Otherwise you could restrict what you might want to cover in your Appeal Statement. You should also make clear whether you are intending to be accompanied.
It is best that you receive professional guidance on the content of your Appeal Letter. WRS can provide this.
Arrangements for, and the conduct of, the Appeal Hearing will follow the same format to the disciplinary meeting.
If you are being supported by WRS, a new and completely different Written Statement will be prepared for you. Instead of revisiting the case presented at the original Disciplinary Hearing, this will focus instead on the specific reasons why the content of the Hearing Manager’s Outcome Letter was either flawed or unreasonable.
If you are unhappy with the outcome of your Appeal, you may have the opportunity to commence legal proceedings against your employer.
In most cases, to do this you must have completed at least 2 years’ service with your employer. You must submit you legal complaint within three months (less a day) of the date of your Outcome Letter or, if dismissed, the date your contract ended.