Until now, the general approach has been that a company cannot claim privilege against its own...
What steps are employers required to take?
Employers are required to follow a particular process prior to conducting a disciplinary hearing. This involves conducting a reasonable investigation, giving adequate advance notice of the hearing, informing the employee of the allegations against them, providing any evidence that is sought to be relied upon, informing the employee that dismissal might be the result of the disciplinary hearing, and offering the right for the employee to be accompanied. Employers should also conduct disciplinary hearings in a fair and objective manner.
It is important that employers have a disciplinary procedure and they adopt and use this procedure. In addition, they should comply with the ACAS Code of Practice, which gives practical guidance for handling disciplinary issues in the workplace. Although a failure to follow the ACAS Code of Practice does not automatically make an employer liable should an employee submit a claim for unfair dismissal, the Employment Tribunal will take any such failure into account. Any failure by the employer to follow the ACAS Code of Practice may render the disciplinary process unfair, leading to a finding of unfair dismissal. This could happen even where the reason for the dismissal itself is found to be fair. In addition, if the Employment Tribunal finds that the dismissal was unfair, it has the power to increase any financial award by up to 25 per cent where it believes that the employer has unreasonably failed to follow the provisions contained in the ACAS Code of Practice.
You should be entitled to take a companion with you to the disciplinary hearing who can be either a trade union representative or a work colleague. He or she will be allowed to ask questions and make points on your behalf, but they will not be allowed to answer questions that are put to you.
Your employer should also tell you if any witnesses will be attending the hearing and likewise you should tell your employer if you intend to call any witnesses.
It is essential that you are thoroughly prepared for the disciplinary hearing. It is also extremely important for you to understand the allegation(s) that have been raised against you so that you can provide responses and put yourself in the best position.
How can we assist you?
We can help you prepare for your disciplinary hearing so that you can respond to the allegations in a clear and concise manner. In addition, we can assist you with compiling any questions that you should ask of any witnesses or your employer and we can assist with any further evidence you should provide in order to assist your case. You may also need assistance with putting together a written statement to hand into your employer, which presents your responses to the allegation(s) raised against you and presents any potential mitigating circumstances.
We can also advise you regarding the process that is being carried out by your employer.
What should happen following a disciplinary hearing?
Once an employer has reached its decision it should write to the employee with the outcome. Employers are also required to offer an employee the right to appeal against any disciplinary sanction issued.
Should you be in a situation where you are appealing the decision to issue you with a disciplinary sanction, we can assist with collating your grounds of appeal in order to provide you with the best opportunity to get the decision overturned.
We can also provide you with advice in relation to the appeal hearing itself. Similarly to the disciplinary hearing, you should be offered the right to be accompanied at the hearing by a work colleague or trade union representative.
After the appeal hearing you should be sent a letter confirming the outcome. If you consider that any such decision is unfair we can assist with advising you in respect of your potential next steps, which might include issuing a claim in the Employment Tribunal or seeking to negotiate a settlement with your employer.