Managing Discipline Pages
You have been appointed as the Chair of a disciplinary hearing, what does this mean?
This means that you have been asked to hear a Managing Discipline case that has already gone through the investigation stage of the process. You could also be hearing a case that has been through the Bullying and Harassment policy, Managing Performance policy or the Whistleblowing policy and has now reached disciplinary hearing stage.
An investigating officer will have gathered evidence and information for you to be able to hear the case and determine if the allegation(s) made against an employee should be upheld and if so, what sanction should be applicable.
You will have been given an investigation report and this may have included appendices. You should familiarise yourself with this report so you are aware of the facts of the case and what factors the investigating officer took into consideration when making their recommendations to you.
At this stage, you will need to make contact with People and Organisation to get an assigned People and Organisation Adviser. They will attend the Hearing with you and will be there to discuss your decisions. They will also advise you if the employee currently has any ‘live warnings’.
1. Arranging the Hearing
It is your responsibility to organise the hearing. You should invite the employee with the standard letter. Please find the template for this below:
You should also attach the investigation report and appendices along with your letter. Please ensure that you have completed the letter fully and have included the time, date & location. Please be considerate when choosing a location. Ensure that the room has blinds if possible, that they are not in an area close to immediate colleagues and provide water and tissues if you can.
If this is potentially gross misconduct, you will need to specify that in the letter by including the standard paragraph. This is also applicable if the employee has a live ‘Final Warning’ or there is evidence of a ‘pattern of behaviour’. Your People and Organisation Adviser will discuss this with you.
Arranging the Hearing FAQs
- Who attends the hearing?
Yourself as the Chair and an appointed minute-taker (if you want one). The Investigating Officer also needs to be in attendance as does your assigned People and Organisation Adviser. The employee attends and has the right to be accompanied by a Trade Union representative or a colleague. They are not entitled to a legal practitioner unless they are professionally registered, that registration is linked to their current job and the allegation is potentially gross misconduct. An additional paragraph is provided in the invitation letter template to accommodate for this.
- What if the employee, their representation or the investigating officer cannot attend the hearing?
The employee will have to let you know as soon as possible and then suggest a suitable alternative day and time within 5 days of your original meeting request.
Should the employee or their representative be on annual leave, then you should allow them to take this and arrange their meeting for when they have returned to work.
If they cannot suggest a reasonable alternative date or time, then the meeting can be held without them.
If the Investigating Officer cannot attend the hearing date you have proposed, then another suitable date should be convened within a reasonable time frame. If there is to be any delay, this should be communicated to the accused employee.
- What if the employee is off sick?
This is not necessarily a barrier to prevent you from continuing with the process. However, should you or the employee be concerned about their ability to fully participate in the disciplinary investigation, you can make a referral to occupational health and ask them to determine if the employee is fit to attend the hearing or not. You should also ask if any adjustments can be made so that the employee can participate in the process. Please note that the Maximising Attendance policy is still applicable but the employee’s line manager should take them through this.
The process cannot be held off indefinitely. You should advise the Commissioning Manager about any sickness so that together you can make a decision about what is reasonable in terms of delay.
- What if the employee does not want to attend the disciplinary hearing?
We require that all employees participate in formal processes. However, in exceptional circumstances you can accept a written statement by the employee and hold the meeting without them present.
2. At the Hearing
Essentially, your role is to hear the accounts of both sides. You will first ask the Investigating Officer to summarise their report and discuss their findings. You, the employee, their representative and the People and Organisation Adviser have an opportunity to challenge anything in the report and ask further questions. Then the employee will have a chance to answer to the allegations and present any mitigation to you if applicable. You, the Investigating Officer and the People and Organisation Practitioner will have the opportunity to ask questions.
For further information on chairing a Disciplinary Hearing, please find a guide and checklist below:
3. Making your Decision
Firstly, you have the right to ask the Investigating Officer to go back and provide you with further information. It may be that you feel there is a gap or a missing essential witness etc. You will then re-convene the hearing once you receive an updated investigation report.
Once you are satisfied that you have all of the information required, you will need to make a determination as to whether to uphold or not uphold the allegation(s). To uphold an allegation, you should be satisfied that there is enough evidence to show that the allegation is true.
Should you be upholding the allegations there are several options available to you in terms of sanction. These are explained in the policy and in the above Disciplinary Hearing Guidance document.
You will then complete a letter with as much factual detail as possible to the employee. This letter also give them the right of appeal against your decision.
Even if you are not upholding the allegations, you will need to send the employee a letter. All template letters for this can be found below:
4. Next Steps
You will need to advise the Commissioning Manager about the outcome of the hearing. This is the person who asked you to be the Chair of the hearing. If the employee chooses to appeal against your decision, you will be invited along to an Appeal Hearing where you will be asked to present your findings and outcomes.
At this stage, either the Chair of the hearing or the Commissioning Manager will need to consider if referrals need to be made to professional bodies or Disclosure Scotland.
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