Under the statutory dispute resolution procedures in place since 1 October 2004, before dismissing someone on the grounds of conduct or capability, employers must notify them in writing of those grounds and hold a meeting to discuss them once the employee has had a reasonable opportunity to consider them. Once a decision to dismiss is taken the employee has a right to appeal that decision at a further meeting.

Disciplinary hearings - main points to note

• Failure to follow a fair dismissal procedure may make a dismissal for alleged misconduct unfair.
• An unfair dismissal will be more likely if the hearing is conducted in breach of the employer's own disciplinary procedure irrespective of whether that procedure is contractually enforceable.
• Before embarking upon disciplinary proceedings, carry out a thorough investigation. This should be documented.
• Employee charged with misconduct should:
  -- be notified in writing of precisely what she/he is accused of having done;
  -- be given an opportunity to answer the accusations at the hearing;
  -- be able to give their side of the story and put forward a defence, explanation or mitigating circumstances.
• Those conducting the disciplinary hearing must keep an open mind.
• An accused employee should be provided with copies of any witness statements/evidence to be relied on at the hearing.
• Failure by an employer to allow the employee to be accompanied by a fellow employee or trade union representative at the hearing may also result in a subsequent dismissal to be held to be unfair and is in breach of the statutory requirements.
• Except where an offence amounts to obvious gross misconduct, does the employee know that he or she could be dismissed for breaking this rule?
• If a rule is unambiguous and it is generally known and spelt out that if the rule is broken it would lead to dismissal then such a dismissal would be more likely to be fair.
• If the rule is ambiguous and generally not known then a dismissal for breaking that rule would be considered unfair.
• A dismissal will be unfair if a rule has fallen into disuse or prohibits conduct that an employer had previously condoned. This may occur if the employer suddenly changes his/her attitude without informing the employee. An employer must always consider all the relevant circumstances including the nature of the offence, culpability of the employee and any mitigating circumstances.
• Instances may occur where one employee is dismissed for breaking a disciplinary rule and then on a further occasion a less severe penalty is imposed on someone else who commits the same offence. Differing treatment will only be unfair in cases where the circumstances are truly comparable.

Disciplinary hearings - 10 point suggested procedure:

• Explain the purpose of the hearing and identify those present.
• Remind the employee of their right to be accompanied and arrange representation if they have not already done so and wish to do so.
• Remind employee of allegation(s) (They should have been notified of the allegations in writing in advance).
• Indicate the form of evidence which you as the employer intend to rely on (relevant documents, witness statements etc) and provide copies to the employee on request. (If they do not already have them)
• Allow the employee/representative to ask questions.
• Ask the employee if she/he wishes to call any witnesses.
• Allow the employee/representative to explain their case.
• Listen impartially to arguments from both sides about allegations and any possible consequences including any mitigation.
• Ask the employee whether there is any further evidence or enquiry which he or she feels can help their case.
• After due deliberation make the decision and confirm it in writing (whether or not an earlier oral indication has been given) and remind the employee of their right of appeal.

Disciplinary appeal - chairman's checklist

• What is our disciplinary procedure and has every aspect been complied with?
  NB: If the Chairman of the appeal realised that the employee was not given sufficient notice of the charges and/or the opportunity to have a representative present, it might be advisable to quash the original disciplinary hearing and require the whole thing to be restarted. Alternatively, the fact could be stated at the commencement of the appeal and, once the employee is then represented, proceed to rehear the original complaint before moving on to any appeal. The problem this may cause is that the Chairman of the appeal then becomes the Chairman of the disciplinary hearing which could pose a problem in smaller organisations should there not be another manager to take over if his or her decision is appealed.
• Was there an investigation prior to the disciplinary hearing?
• Was the investigation exhaustive, objective and, above all, reliable?
• Was all the evidence put before the disciplinary hearing?
• Assuming the answers to these three questions are 'yes', are the investigation's findings set out in the evidence and were all these facts put to the employee?
• Was the employee notified adequately in writing of the grounds of the complaint and given every opportunity to answer charges/provide explanations and are these explanations recorded?
• Do any material questions occur which were not put to either side? (If so, these should be listed so that they can be asked during the appeal).
• Given the investigation, the evidence and the employee's answers and observations on the evidence, is it reasonable to conclude that the employee was culpable of the behaviour complained of?
  NB: The criminal law test of guilt "beyond reasonable doubt" is not required here. The employer is required to conduct a thorough investigation and to have a reasonable belief in the employee being culpable and then to act reasonably in terms of a sanction.
• Was the hearing conducted properly with the employee given every opportunity to make their case and to make any pleas in mitigation?
• Were such contentions and pleas taken into account?
• What is the employee's record?
• Have there been other cases of this nature and, if so, what were the circumstances and decision in those cases?
• What do our rules say; do we always abide by the rules - is there any discretion or are there any "rule relaxation" precedents?
• Was the decision made by the Chairman of the disciplinary hearing appropriate in the circumstances? In other words "does the punishment fit the crime", bearing in mind the previous record of the employee, any precedents that may be operative, and the reasonableness of the sanction?
• Are there any other concerns?
• If the appeal was against severity does the sanction fit the offence and is it in accordance with any precedents?

© Davenport Lyons 2005 All rights reserved This document reflects the law and practice as at February 2006. It is general in nature, and does not purport in any way to be comprehensive or a substitute for specialist legal advice in individual circumstances.