Preparing for the meeting
- Ensure that all the relevant facts are available, such as disciplinary records and any other relevant documents (for instance, absence or sickness records) and, where appropriate, written statements from witnesses
- Where possible, arrange for someone who is not involved in the case to take a note of the meeting and to act as a witness to what was said
- Check if there are any special circumstances to be taken into account. For example, are there personal or other outside issues affecting performance or conduct?
- Be careful when dealing with evidence from a person who wishes to remain anonymous. Take written statements, seek corroborative evidence and check that the person's motives are genuine
- Consider what explanations may be offered by the employee, and if possible, check them out beforehand
- Allow the employee time to prepare his or her case. Copies of any relevant papers and witness statements should be made available to the employee in advance
- If the employee concerned is a trade union representative discuss the case with a trade union full-time official after obtaining the employee's agreement. This is because the action may be seen as an attack on the union
- Arrange a time for the meeting, which should be held as privately as possible, in a suitable room, and where there will be no interruptions. The employee may offer a reasonable alternative time within five working days of the original date if their chosen companion cannot attend. You may also arrange another meeting if an employee fails to attend through circumstances outside their control, such as illness
- Try and get a written statement from any witness from outside the organisation who is not prepared to or is unable to attend the meeting
- Allow the employee to call witnesses or submit witness statements
- Consider the provision of an interpreter or facilitator if there are understanding or language difficulties (perhaps a friend of the employee, or a co-employee). This person may need to attend in addition to the companion though ideally one person should carry out both roles
- Make provision for any reasonable adjustments to accommodate the needs of a person with disabilities
- Think about the structure of the meeting and make a list of points you will wish to cover
Right to be accompanied
By law, a worker is entitled to be accompanied to a disciplinary meeting. This right only applies to meetings at which the outcome could be (i) a formal warning being administered; (ii) the taking of some other action against the worker by the employer or (iii) the confirmation of a warning or other action against the worker by the employer. The right also exists in respect of grievance meetings. The worker is entitled to be accompanied by a work colleague or trade union representative. Your internal procedures may allow other categories of companions but if not, you are entitled to restrict the categories to those required by statute. Failure to allow a worker to be accompanied by a work colleague or trade union rep can result in a Tribunal award of up to 2 weeks' pay.
What if an employee repeatedly fails to attend a meeting?
There may be occasions when an employee is repeatedly unable or unwilling to attend a meeting. This may be for various reasons, including genuine illness or a refusal to face up to the issue. Employers will need to consider all the facts and come to a reasonable decision on how to proceed. Considerations may include:
- Any rules your business has for dealing with failure to attend disciplinary meetings
- The seriousness of the disciplinary issue under consideration
- The employee's disciplinary record (including current warnings), general work record, work experience, position and length of service
- Medical opinion on whether the employee is fit to attend the meeting
- How similar cases in the past have been dealt with
Where an employee continues to be unavailable to attend a meeting, the employer may conclude that a decision will be made on the evidence available. The employee should be informed where this is to be the case and given a final opportunity to attend or make written representations before a decision is taken.
How should the disciplinary meeting be conducted?
Remember that the point of the meeting is to establish the facts, not catch people out. The meetings may not proceed in neat, orderly stages but it is good practice to:
- Introduce those present to the employee and explain why they are there
- Introduce and explain the role of the accompanying person if present
- Explain that the purpose of the meeting is to consider whether disciplinary action should be taken in accordance with your business's disciplinary procedure
- Explain how the meeting will be conducted
Statement of the complaint
State precisely what the complaint is and outline the case briefly by going through the evidence that has been gathered. Ensure that the employee and his or her representative or accompanying person are allowed to see any statements made by witnesses and to question them.
Give the employee the opportunity to state their case and answer any allegations that have been made. They should be able to ask questions, present evidence and call witnesses. The accompanying person may also ask questions and should be able to confer privately with the employee. Listen carefully and be prepared to wait in silence for an answer as this can be a constructive way of encouraging the employee to be more forthcoming.
Establish whether the employee is prepared to accept that they may have done something wrong or are not performing to the required standard. Then agree the steps which should be taken to remedy the situation.
If it is not practical for witnesses to attend, you should only consider proceeding if you are satisfied that the employee will not be disadvantaged by not being able to ask the witness questions at the meeting.
Alternatively, consider an adjournment to allow questions to be put to a witness who cannot attend in person but who has submitted a witness statement.
General questioning and discussion
- Use this stage to establish all the facts
- Ask the employee if they have any explanation for the alleged misconduct or unsatisfactory performance, or if there are any special circumstances to be taken into account
- If it becomes clear during this stage that the employee has provided an adequate explanation or there is no real evidence to support the allegation, bring the proceedings to a close
- Keep the approach formal and polite and encourage the employee to speak freely with a view to establishing the facts. A properly conducted disciplinary meeting should be a two-way process. Use questions to clarify the issues and to check that what has been said is understood. Ask open-ended questions, for example, 'what happened then?' to get the broad picture. Ask precise, closed questions requiring a yes/no answer only when specific information is needed
- Do not get involved in arguments and do not make personal or humiliating remarks. Avoid physical contact or gestures which could be misinterpreted or misconstrued as judgmental
If new facts emerge it may be necessary to adjourn the meeting to investigate them and reconvene the meeting when this has been done.
Summarise the main points of the discussion after questioning is completed. This allows all parties to be reminded of the nature of the offence, the arguments and evidence put forward and to ensure nothing is missed. Ask the employee if they have anything further to say. This should help to demonstrate to the employee that they have been treated reasonably.
Adjournment before decision
Adjourn before a decision is taken about whether a disciplinary penalty is appropriate. This allows time for reflection and proper consideration. It also allows for any further checking of any matters raised, particularly if there is any dispute over facts.
Stopping or suspending the meeting
When an employee raises a grievance during the meeting, it may sometimes be appropriate to consider stopping the meeting and suspending the disciplinary procedure – for example when:
- The grievance relates to a conflict of interest that the manager holding the disciplinary meeting is alleged to have
- Bias is alleged in the conduct of the disciplinary meeting
- Management have been selective in the evidence they have supplied to the manager holding the meeting
- There is possible discrimination
It would not be appropriate to suspend the meeting where the employee makes an invalid point. For example, if they mistakenly claim that they have the right to be legally represented or that a collectively agreed and applicable procedure does not apply to them because they are not a union member.
It is possible that the disciplinary meeting may not proceed smoothly – people may be upset or angry. If the employee becomes upset or distressed allow time for them to regain composure before continuing. If the distress is too great to continue then adjourn and reconvene at a later date – however, the issues should not be avoided. Clearly during the meeting there may be some 'letting off steam', and this can be helpful in finding out what has actually happened. However, abusive language or conduct should not be tolerated.
Following a disciplinary meeting, you should inform the employee as soon as possible in writing of:
- What disciplinary penalty you plan to impose, if any
- The reasoning behind the decision
- What specific improvement is required - if any
- How long any warning is going to remain in force
- The likely consequences of any repetition of the misconduct or continuation of the poor performance
- The right of appeal and how and within what period this should be exercised