Once both sides of the case have been presented the hearing should be adjourned. Issues that have been raised may require further investigation and witnesses may need to be re-interviewed. Any new evidence should be given in writing to the employee and the employee given the opportunity to attend a re-convened meeting. The length of the adjournment depends on the complexity of matters and even if the employer knows what sanction it wishes to impose it is better to adjourn as announcing a decision straight after the meeting would suggest that the outcome has been pre-determined and that the employee has not been treated fairly or reasonably.
An employer may conduct the disciplinary procedure fairly and reasonably however, if it is considering dismissal it must also ensure that it has a genuine belief, based on reasonable grounds, that the employee is guilty of misconduct and that any decision to dismiss is fair and reasonable in all the circumstances. It is important that any punishment is proportionate to the offence so as not to breach the duty of trust and confidence. When deciding the appropriate penalty employers can take into account any live warnings but may only take into account expired warnings where this is not the principal reason for any subsequent dismissal. If considering dismissal, the employer should ensure that it has thought about whether there are any other alternatives to dismissal such as demotion, redeployment, demotion or final written warning. Whilst taking such steps without a contractual right may breach trust and confidence, the employer may nevertheless decide to present it to the employee as an alternative to dismissal which the employee may consent to.The employee must be informed in writing, without unreasonable delay of the employer’s decision and their right of appeal. Any letter confirming the decision to dismiss should:
Clearly set out the allegations against the employee, the findings, the factual basis and the reasons the employer has reached the decision to dismiss;
Refer to any previous warnings;
Confirm the employee’s termination date and whether their employment is terminated with or without notice, any garden leave arrangements, whether a payment in lieu of notice will be made or whether the employer considers that there is no notice entitlement because the employee has been dismissed for gross misconduct;
Confirm the employee’s pro-rata holiday entitlement up to the termination date and whether the employee is entitled to a payment in lieu of accrued but untaken holiday;
Provide instructions on how to appeal, including who the appeal should be forwarded to and the deadline for doing so.
The right of appeal is enshrined in section 2(4) of Schedule 1 of the Employment (Northern Ireland) Order 2003. Employers should always consider the surrounding circumstances when considering whether to accept an appeal out of time. So far as is possible the appeal should be dealt with by someone who has not been part of the process and who is more senior than the person who conducted the disciplinary hearing.The employee should be asked to state their full grounds of appeal so that a decision can be taken whether the appeal will be a review of the decision and evidence of the original hearing or whether it will be full rehearing. The chair of the appeal should have access to all of the evidence from the original hearing but should not confer with the original decision makers prior to the hearing.It is possible that procedural defects in an initial disciplinary hearing may be remedied on appeal, provided that the appeal is sufficiently comprehensive. Ultimately what is important is that the procedure was fair overall. Once the appeal decision is made the employee should be informed whether the decision to dismiss has been upheld and if so that the process is complete and that they have no further right of appeal.We hope that this provides a basic guide to conducting a disciplinary process in a fair and reasonable manner. Our next article will look at some tricky areas such as employees in long term sick, criminal investigations, legal representations and reluctant witnesses.