In this blog we take a look at the role of HR in a disciplinary hearing, but we also cover how HR can help before you get there. Because without those prior steps you’re unable to run an effective disciplinary hearing. And, moreover, those steps may prevent any Disciplinary hearing in the first place. At Wright People HR we believe that prevention is always better than a cure.
Why use HR rather than not in the Disciplinary process?
Any disciplinary process can be stressful for all of those concerned.
That’s why the involvement and guidance from a competent HR adviser can be invaluable. Not only are they able to bring impartiality, they’re able to ensure that the process is fully compliant.
It’s also fair to say that most managers dislike being part of a disciplinary hearing, so will try to avoid them. However, the expectations that you set for the people in your business need to be met, and when they’re not, there needs to be consequences. Again, this is where using a HR adviser comes into its own – by supporting managers in doing something that otherwise they don’t want to do and, in turn, put off doing.
What is a disciplinary hearing?
A disciplinary hearing is part of the disciplinary process – it is a meeting between you (as the employer) and an employee, held when you wish to discuss an allegation of misconduct with an employee – or any other behaviour that merits disciplinary action such as continued under-performance.
Why is it key to set employee expectations, from the start?
A disciplinary procedure is a formal way for an employer to deal with an employee’s:
- unacceptable or improper behaviour (‘misconduct’)
- performance (‘capability’)
So, expectations on these things must be clear from the start.
This begins by having a comprehensive Employee Handbook which sets out clearly your HR policies, including your disciplinary procedure and policy.
The Handbook must set out your company’s policies – if you like, the rules of working at your business. These may cover a multitude of areas such as time keeping, absence reporting and holiday rules. Misconduct is deemed to have taken place if any of those policies are not followed – if there is unacceptable or improper behaviour– which will kick-start the disciplinary process.
Another one of your policies should cover performance management. This will set out what the process is to be followed and any disciplinary steps should performance not meet expectations. Of course, you also need to be clear on your performance expectations – whether that’s in the form of objectives, KPIs, targets or behaviours, and how these expectations will be measured.
All employees should understand your company policies and your expectations of them – along with the consequences of them not being followed. Equally, all managers should understand, be trained and have the capability to effectively and compliantly enforce those policies.
All of this is where the input from a competent HR adviser should begin, from creating those policies to training managers, not just at the end point of a Disciplinary hearing, in our view.
Why take an informal approach before any formal disciplinary hearing?
Whether it’s misconduct or performance, either way, before starting a disciplinary procedure, you should first seek to resolve the problem in an informal way. This can often be the quickest and easiest solution, and can avoid the pain of disciplinary action. Obviously, this depends on the severity of the issue. Gross-misconduct might go straight to disciplinary hearing, following investigation, where the potential consequence is a dismissal.
If it’s to do with performance, then using your performance management process is the quickest and easiest solution to try resolve a problem. A HR adviser can assist you in implementing an effective performance management process. See our blog on how to do this at https://www.wrightpeoplehr.com/blog/how-to-provide-performance-feedback-to-your-employees/
The aim at this stage is, that through dialogue, you set your expectations, listen to their point of view and then seek to both agree on what improvements will be made.
When does an informal approach transition into a formal Disciplinary hearing?
A competent HR adviser can ensure that all the relevant steps prior to a Disciplinary hearing have taken place fairly and compliantly.
But if you continue to see repeated patterns of poor performance and misconduct, despite setting clear expectations and targets, then you might feel that is time to start a disciplinary procedure. If it’s performance related you could first put them on a Performance Improvement Plan (PIP). See our blog https://www.wrightpeoplehr.com/blog/how-do-you-dismiss-someone-for-poor-performance/
If you do decide on a disciplinary procedure, you must carry out a full investigation first. If the Manager investigating feels there is misconduct, then the employee should be informed straight away of the disciplinary hearing.
This should be done in writing and should include:
- sufficient information describing the alleged misconduct or poor performance
- possible consequences, for example a written warning or potential dismissal
- right for the employee to be accompanied at the disciplinary meeting
A HR adviser will have the judgement to ensure that the potential consequences are in line with the severity of the issue, based on their previous experience of similar cases, and also take into account previous similar issues and consequences in your workplace.
Employers should follow the procedure and policy (from your Staff handbook) for each disciplinary case, and a HR advisor will guide you through the policy.
Getting any of these things wrong can open the possibility of an expensive unfair dismissal claim or potential discrimination claim or constructive dismissal claim.
What happens if an employee raises a grievance?
If the employee raises a grievance during the disciplinary procedure, the employer can pause the disciplinary and deal with the grievance first. It might be appropriate to deal with both at the same time if the grievance and disciplinary cases are related. This is where a HR adviser’s judgement can again help.
Does a Disciplinary hearing require an investigation?
Ahead of a disciplinary hearing (or grievance hearing) as the employer you should find out all you reasonably can about the issue to make sure everyone is treated fairly. This is known as an ‘investigation’. Where possible, the employer should get somebody who’s not involved in the case to carry out the investigation, ideally HR who will have the expertise and neutrality to deal with the situation.
This usually starts with interviewing the employee to identify what has happened and why and get their side of the story. If there are other witnesses, in the case of misconduct, you should also interview them. There may be documents or other information to gather e.g., in a case of repeated lateness there may be clocking in data, or data recorded by the Manager.
Who should undertake which other parts of the Disciplinary Process?
It should be clear from the outset who will:
- Carry out the investigation process;
- Conduct the disciplinary hearing; and
- Conduct any appeal hearing.
If you want the benefit of an HR adviser’s wealth of experience, then it’s in a disciplinary investigation. Your HR should not be in a decision making role in any of the other parts of the process, enabling them to carry out their function of providing advice about on compliance, procedure and, ultimately, providing their experience to guide the Manager’s judgement of what disciplinary action is reasonable and fair.
Remember also that, going through a disciplinary procedure, can be very stressful, so it’s important that employers consider the wellbeing and mental health of their employee. Again, this is where a HR adviser brings value. They’ll ensure that there’s a duty of care
Finally, and of note, is that it’s important to ensure that the role the HR adviser takes is made clear from the start of the process. There have been a number of tribunal cases where the role of HR in a disciplinary hearing resulted in a dismissal being unfair due to there being questions over impartiality and the confused role of HR during the disciplinary process.
What should happen after the Disciplinary Hearing is held?
The employer should tell the employee of the outcome as soon as possible and in writing. The HR adviser will help draft the outcome letter, detailing why the decision was taking and what considerations were made during the disciplinary meeting. The employee will have a right to appeal within a set time frame and, again, a HR adviser can support this process. The reasons for appeal should be set out in writing by the employee. Any Manager hearing the appeal should be more senior than the disciplinary Manager and should not have been involved in any previous parts of the process e.g., not be involved as a witness, investigator, or in the disciplinary meeting. We would also advise a different HR adviser attend the appeal meeting for further impartiality. Wright People HR have a team of HR experts to help at all stages of the process.
In addition, it can be a good idea for the employer to talk privately with any staff who knew the disciplinary procedure was happening (e.g. witnesses) to avoid any negative effects on the business, although the disciplinary outcome and details must remain confidential.
And remember to keep a written record of everything in case there is any ‘come-back’ later!
If you require any help or support on Disciplinary Hearings or any of the Disciplinary Process, please let us know.