Notification
If there are potential disciplinary issues to be addressed with an employee following an investigation the employee should be notified of the allegations in writing and invited to a disciplinary hearing. The invitation should, at least:
- Set out the alleged disciplinary matters;
- Explain the possible consequences;
- Give the date, time and place of the disciplinary meeting; and
- Remind the employee that he has the right to be accompanied at the meeting.
Right to be Accompanied – In addition to rights under the employment contract or Trade Union / collective agreements, Section 10 Employment Relations Act 1999 provides that an employee has the right to be accompanied to disciplinary hearing by a companion. A companion may be a colleague or a Trade Union representative. This right only applies to a meeting at which a disciplinary sanction is to be imposed or confirmed. There is no right to be accompanied to an investigatory meeting. Legal representation at disciplinary hearings is not normally permitted. If an employee suffers from a disability it may be appropriate for him to be accompanied by another person by way of a ‘reasonable adjustment’ to the usual procedure.
Evidence – It is usually advisable that the employee be given the evidence that has been gathering in the course of the investigation, such as witness statements, unless there is a good reason not to for example that an employer has told a witness they can remain anonymous.
Disciplinary Hearing
A disciplinary hearing or meeting with the employee must be held without unreasonable delay. An independent chair person and note taker should be appointed to conduct the hearing and make a record of the meeting.
The purpose of the hearing is to give the employee the opportunity to ask questions and to explain matters from their perspective. They may also wish to submit their own evidence to support what they are saying. If the employee cannot attend the meeting, the employer must normally adjourn the meeting at least once. The ACAS code does recognise some instances in which it may be appropriate to proceed with the meeting without the employee, but these are rare.
If further investigations need to be carried out as a result of matters raised during the meeting then the employer should adjourn the meeting and carry these out. The level of investigation that is appropriate will depend on the circumstances in question.
Outcome
The employer must decide whether disciplinary action is justified. If the allegations are confirmed the employee will be issued with an appropriate written warning or dismissed based on the matters raised.
The ACAS Code recommends administering at least two warnings before dismissing an employee for misconduct unless the misconduct amounts to gross misconduct. Employees should be given at least one chance to improve before being issued with a final written warning.
The decision to dismiss the employee can only be taken by a manager who has authority to do so. The employee must be notified in writing of the dismissal without any unreasonable delay.
After the Meeting
The employer must decide whether disciplinary action is justified. If the misconduct is confirmed the employee will be issued with an appropriate written warning or dismissed.
The ACAS Code recommends administering at least two warnings before dismissing an employee for misconduct unless the misconduct amounts to gross misconduct. Employees should be given at least one chance to improve before being issued with a final written warning.
The decision to dismiss the employee can only be taken by a manager who has authority to do so. The employee must be notified in writing of the dismissal without any unreasonable delay.
