- Is there a belief that the employee has not followed company rules?
- Ensure the matter been investigated as thoroughly as possible within the bounds of reasonableness.
- Obtain any witness statements as soon as possible before memories fade. Advise witnesses that their statement will be released to the employee unless it is anonymous.
- Check as many facts and documents as possible.
- Decide if there needs to be an investigation meeting
- If so, is it possible to give notice and the right to be accompanied or does it need to be dealt with immediately
- Conduct further investigation if the employee raises issues which need checking
- If you are satisfied with the explanation the case should be dropped.
- If you are not satisfied with the explanation go to a disciplinary meeting
- Advise the employee of the outcome and next steps
Check your procedures, especially if they have a union representative accompanying them.
- Check, and have available, the facts from your investigation, including employee records and any witness statements.
- Consider what explanations may be put forward and investigate them first if possible
- Arrange for a note taker. It is crucial to have someone else take notes at a disciplinary meeting unless it is for something very simple like late attendance, but even then, you don’t know what might come up in mitigation. This is because it is essential to capture as much detail as possible.
- Ensure there will be a private room for the meeting. Make sure it is available for enough time; add on more than you think you will need.
- Invite the employee to a disciplinary meeting in writing with a different manager to the person conducting the investigation if practicable (see HR adviser letter templates)
- Check they have been:
- told the time, date and location of the meeting. Ensure there is sufficient time before the meeting for the employee to consider the evidence and prepare, balanced against dealing with the matter promptly.
- told the allegation(s), whether it is/they are misconduct or gross misconduct
- told the possible outcome
- given any documents you are relying on, including witness statements
- told of their right to be accompanied
- Allow a postponement if the representative is not available. (see HR adviser letter templates)
- Make adjustments for an employee with disabilities if necessary.
- Consider an interpreter if language is a difficulty. If you use a fellow employee be sure you can trust them to translate accurately.
- Check with the employee if they intend to bring witnesses or submit witness statements or any other written representation.
- Check your witnesses are available, if you are bringing any, and for up to 5 days after the proposed date in case the employee postpones
- If the employee being disciplined is a Trade Union representative you must advise the Trade Union.
- Plan the meeting to ensure all points are covered and that you retain control. Put them into a checklist for use in the meeting to make sure you haven’t missed anything, particularly if the employee has a tendency to digress.
Say the following points – ASK THE NOTE TAKER TO RECORD THESE POINTS – the easiest way is to give them a copy so they only have to record the answers and they can remind you if you miss one. Key points are in bold for quick reference in the meeting.
Introduce – Yourself; the note taker; check the name of Companion if there is one; any other person present;
- Mobile phones – ask them to turn off their phone and place it on the table. This is to avoid covert recording unless you are happy to allow it. This is not recommended for less experienced disciplinary managers.
- Notes – tell them they will be given a copy of the management notes to check for accuracy but this is to correct fact not to change their evidence. Tell them that they or their companion may take their own notes if they wish. Ask for a copy if they do, but note you cannot insist.
- If there is no companion say “I see you have chosen to be unaccompanied, are you happy to proceed on that basis”. If they say it was because their chosen companion was not available ask if they want to postpone as they have a right to for up to 5 working days for this reason, but only for this reason, not to consult a solicitor or other adviser.
- Role of companion- explain the companion can help present the case (eg remind them of things), they can adjourn to confer with the employee but they may not answer questions on their behalf. Note you can adjourn too if you want to check anything.
- Explain the roles of everyone present – yourself as the disciplinary manager; the note taker; the companion (see below).
- Check they received all the documents; the letter setting out the allegations and supporting evidence and a copy of discipline procedure if sent or they have had access if not sent. The fact they are there might be taken to mean they received the letter but check they have all the pages if there is more than one.
- Check they understand the allegations.
- State no decision has been taken at this stage; this is their opportunity to give their explanation.
- Explain the format of meeting:
- You will go through the allegations one at a time and ask for their comments and they can ask questions at the end or present any further evidence they wish you to consider.
- Ask if they have any questions at this stage.
- Take the allegations in order and one at a time and ask them to give you an explanation after each one. If there is more than one allegation leave the most serious one until last as the rest of the interview can seem pointless if you take it first, especially if a gross misconduct allegation is not answered well. You still need to cover all allegations for any potential later tribunal claim.
- Listen to answers without interrupting unless you have not understood something or they are going off the point. If you do have to interrupt do not do it too abruptly, refer back to what you just asked. It may be you will come back to that point in which case say so but finish one line of questioning first so you do not forget.
- Keep to the point if they stray – eg. if they bring in other staff, or what you have done and say “today we are here to consider your actions not that of others”. Having the allegations can help bring things back – we are discussing….
- If they get emotional, such as distressed or angry keep a low, slow calm tone and explain this is not helping their case. You need to ask about these matters. If they won’t calm down take a 10 minute break and ask them to come back then, or leave them there if you don’t want them outside the room but take confidential paper and the notes with you.
- NEVER be tempted to argue or use sarcasm – eg. do you really think … How can you say that?… You are in the driving seat you don’t need to feel threatened in any way, they have to answer your questions, you control the agenda but you can do this with quiet certainty rather than getting defensive or aggressive; watch for frustration. Difficult I know when you are emotionally involved, but just keep telling yourself you hold all the aces they have to explain. I always find a neutral tone works best or “more in sorrow than anger”, depending on the relationship.
- Ensure the employee has a chance to fully explain the allegations in the meeting, check after each one do they have anything else to add.
- If the employee raises something that you hadn’t investigated or evidence that you feel should be investigated, adjourn the meeting and reconvene once you have investigated. If it is a simple matter you can reconvene as soon as you have checked any facts. If it is more complicated you will need to write inviting them to another hearing and providing them with any new evidence you have uncovered including any new allegations which have come to light in the same way as the original allegations. Ensure the employee is sent any new evidence in good time before the reconvened meeting.
- The start time, the timing of breaks and the end time of the meeting should be recorded in the notes as should any other relevant comments such as X shook his head or Y started to shout and become abusive.
CONCLUDING THE MEETING
- Always ask if they have anything further to add and do they feel the process has been fair
- NEVER, EVER, give a decision at the end of the meeting, no matter how obvious it is.
- Always take a break to consider (if it is only 10 minutes for simple things, longer if they had a lot to say).
- Say you will consider what they have told you and that you will let them have your decision [later; on , within ..days ]. Always try to do it within the timescales in your procedures.
- Tell them whether you will advise them of the outcome face to face, by email, or post.
Advise the employee of the outcome of the disciplinary hearing and their right of appeal. Confirm in writing if an oral decision is given. Ensure the disciplinary decision gives an explanation for the decision especially if dismissal is the outcome.