Employment Law: Ask us Anything About Disciplinaries

These are the most frequently asked questions taken from Judicium’s Employment Law ‘Sofa Session’ from the 4th of December with Employment Law & HR consultants Jenny Salero, LL.B (Hons), L.P.C., Kelly Rayner, LL.B (Hons), QLTT and Suzanne Ravenhall, Chartered MCIPD.

1.  Do we need to hold a hearing to issue management guidance?

No, management guidance does not require a disciplinary hearing. This can be issued in a management meeting as it is informal guidance on how to improve or avoid making the same mistakes moving forward. Management guidance is appropriate for low level conduct concerns that would not require a formal process.

2.  What should I do if the employee is signed off as unfit for work?

You can carry on as planned – just because a member of staff is signed off as unfit for work, it does not mean they are too unwell to attend a short meeting.

If the colleague maintains that they cannot attend because they are too unwell, we suggest making an OH referral. As part of this referral you should ask whether the colleague is able to attend meetings in person and if not ask about alternative options – i.e. remote meetings, holding the meeting over the phone, in writing or asking a union representative to attend on their behalf. Unless the colleague is very seriously unwell (in which case we would not expect and employer to be pushing a disciplinary at this point) it is very rare for a colleague to be unable to engage in any format.

3.  Can the employee bring a family member to the investigation meeting or disciplinary hearing?

There is no legal requirement to allow someone to be accompanied by a family member, this is at your discretion. However, in some circumstances it can be a reasonable adjustment and may avoid further delays in a process.

4.  Do notes of meetings need to be signed? What if our policy says that we should do this?

Notes are just that – they are not witness statements, so they do not need to be signed. However, we would suggest they are shared with staff so they can confirm they are happy with the content. If your policy suggests they should be signed then ideally the School should try to adhere to this, but if they are not signed in breach of the policy this does not make the process fundamentally unfair.

5.  What should we do if the employee says their representative is not available to attend the disciplinary hearing?

 An employee can request a delay to a hearing on one occasion, if their union representative is not available. In these circumstances they should provide an alternative date within 5 working days. However, often what will happen is they will say they cannot attend and do not provide any further information. We would suggest to try and avoid this, you provide as much notice as is possible and have an alternative, back-up date in mind just in case!

6.  Do we need to place any disciplinary on hold if the employee raises a grievance?

General advice is to try and run both processes concurrently if possible. However, there are some circumstances where a grievance may need to be dealt with and the disciplinary placed on hold pending completion of the grievance. For example, a grievance is raised against the investigation officer that they have been bullying the employee and are therefore not impartial. However, please do seek HR advice on this matter before making a decision.

 7.  Can the employee submit new or further information in the hearing itself?

 Ideally the employee should provide all information to the investigating officer or anything additional in good time before the hearing. However, if this does not happen the employer should be reasonable and allow this information to be considered at the hearing. But, there is no need to delay the hearing, a short adjournment can be taken whilst all parties review this additional information.

8.  Who should attend the hearing?

 Generally speaking, the following parties should attend the hearing:

• The employee
• Their representative (if they have one);
• The investigating Officer;
• The decision maker (or makers if this is a Panel);
• A notetaker; and
• HR support if this is required.

On some occasions witnesses may be asked to attend but we would suggest that this is avoided as far as possible, as this is very disruptive and difficult for staff.

9.  Should the investigating officer remain for the full hearing?

Ideally yes, they can then answer any questions that may crop up throughout the hearing.

10.  Can the employee’s previous disciplinary record be taken into account?

Yes, if the employee has a live disciplinary warning on file this should be shared with the investigating officer if it is relevant to the current concerns, but the decision maker should also be informed. This may impact on the decision they make.

On the flip side, if the employee has an exemplary record this is something that should also be confirmed to the investigating officer and decision maker, as this is strong mitigation.

Useful Information

If you would like to see what HR and Employment Law training we have coming up, please see our training page here.

If you would like more information of how we can support you or more information regarding our Employment Law and HR Advisory service, please see more details regarding the service here.

Alternatively, you can contact us on: 0345 548 7000 or email enquiries@judicium.com

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