Review any disciplinary arrangements set out in your HR Policies or contracts of employment. This Quick Guide summarises the minimum standards, but if your own arrangements are more generous then these arrangements should be followed.
Make sure you have carried out a proper investigation first. For more information, read the Disciplinary process.
In the case of misconduct, consider writing an invitation letter to the accused employee to arrange the hearing, confirm the allegations and witnesses and explain the possible consequences (including dismissal if that’s the case). In the case of poor performance, you can use an Invitation letter to a poor performance hearing. In either case, make sure you include enough detail so they can prepare their response properly and explain that they can bring a companion to the hearing.
Enclose a copy of your disciplinary policy and any written evidence - including any investigation reports, relevant documents or emails and witness statements.
Let the employee have at least five working days to prepare, after they’ve received the letter.
Before the hearing, make sure both sides know what witnesses the other is going to call. You can use written witness information or statements at the hearing, but the ACAS Code says employees should be given the opportunity to call witnesses in person.
All employees have the right to be accompanied to disciplinary and grievance hearings and appeals by a fellow worker or trade union rep, if they reasonably request this. When you write to confirm meeting arrangements, you should notify the employee of their right to be accompanied in the letter. The right to a companion does not apply to investigatory meetings.
The companion can be a trade union representative even if the employee is not a union member or you, as the employer, don’t have a link with that union. The companion can also be another worker (even if not a permanent employee) but no one has to be a companion if they don’t want to be. Normally, the employee can’t bring a lawyer as a companion. There are exceptions to this (eg if they’re disabled or if the hearing may have an effect beyond the employee’s current job). You can ask the employee to confirm in advance who they intend to bring as their companion, so that you can check that it’s reasonable. Only reject a proposed companion for a good reason.
The companion’s role at the meeting is to act on behalf of the employee (eg put forward their case, sum up for them and answer views expressed at the hearing). You should allow the companion to consult privately with the employee during the meeting. Companions cannot answer questions directed to the employee or interfere with another person’s contribution to the hearing.
If the employee or their companion can’t attend, rearrange the hearing. If they keep missing the hearing without a good reason, you can reach a decision without them, based on the evidence available.
If they can’t make it due to health issues, consider whether this constitutes a disability. If so, you may need to change how or where the hearing happens (eg allow written evidence or holding the hearing at their home) in order to avoid falling foul of any equality regulations.
At the hearing, you should have a chairperson, someone from the employer to take notes, the employee, their companion and ideally a Human Resources person to make sure the right procedures are followed.
The chairperson should begin by introducing everyone in the room, including themselves, explain what the allegations are and then go through the evidence.
The employee should be allowed to answer the case and set out their own. They should be able to question the evidence against them, present evidence of their own and call witnesses of their own.
However, the employee does not need to be allowed to question witnesses directly save in exceptional cases. Normally, that’s better done by the chairperson. But the employee must be allowed to make points about witness evidence against them.
After the hearing, you should reach a decision and consider communicating it using a Disciplinary outcome letter for misconduct or a Poor performance outcome letter. For more information, read Disciplinary Warnings and Disciplinary Appeals.
When running a disciplinary hearing, ensure you process employee data fairly and legally. You should tell employees the types of data you might collect about them and what you do with it in a Data Protection Privacy Notice/'Fair Processing Statement' - a statement describing how you collect, use, retain and disclose personal information. For further information, read Data protection and employees.