By now all employers should know that getting it wrong when it comes to dealing with a disciplinary matter can prove costly – and that applies to the simplest of things.
When the allegation comes to light, suspension (1) is considered and possibly enforced, the investigation conducted and disciplinary action instigated, the difficult groundwork has been completed.
So it’s tempting to think that setting a date for the disciplinary hearing (2) is the easy part, but as with any date things may not always go to plan.
It is important not to rush things. The worker facing the allegations should be provided with all of the evidence to be considered at the hearing, and given reasonable time to prepare a response to it.
There is no definitive answer as to what is considered reasonable time. A lot will depend on evidence to be considered and the complexity of the case.
When it comes to what is reasonable, consider the circumstances and relevant issues. It is important to be rational, fair and sensible as doing so will mean an employer can justify its actions at an employment tribunal, should it ever be necessary to do so.
When the date for a disciplinary hearing is set, the worker may ask for a postponement for any number of reasons.
All workers have a statutory right to be accompanied by a companion at a disciplinary hearing. In accordance with the Employment Relations Act 1999 a companion can be trade union officials, certified union representatives or fellow workers (3).
If the companion is not available on the proposed date, the worker can suggest an alternative one that falls within five working days of the original date. In these circumstances the hearing should be rearranged.
It is understandably frustrating when a date for a disciplinary hearing is set and the worker asks for it to be changed.
While an employer is under no obligation to agree to change the date of a hearing it is best to do so at least once, if it is for a valid a reason. The ACAS Code ( 4 ) advises that it is good practice to rearrange a meeting if the worker fails to attend at the first time of asking.
Should it ever become necessary to justify to an employment tribunal (5) that the disciplinary action taken was fair then this will help an employer to demonstrate that it acted reasonably.
Unexpected events can lead to a worker making a request to postpone the disciplinary hearing. This may include genuine care responsibilities such as childcare or having to care for a disabled relative. Any request for a postponement should be carefully considered.
Facing the prospect of disciplinary action can be difficult and stressful and it can have a detrimental impact on a worker’s health and well-being. In some cases workers may attempt to use ill health as a deliberate delaying tactic in a desperate attempt to try and avoid what they may be believe is the inevitable outcome.
Employers are not expected to suspend the process indefinitely. Occupational health (6) advice should be sought if there is a prolonged period of ill health absence. Specific questions can be asked of the health advisor to determine the worker’s fitness to attend a hearing.
Consideration can also be given to adapting the process such as allowing the worker to take part remotely via Skype or telephone, accepting written submissions or holding the hearing at a neutral venue.
Despite an employer’s best efforts it may sometimes be necessary to take disciplinary action against a worker in their absence, but this carries legal risks and expert advice (7) should always be sought beforehand.