Disciplinary procedures - Handling tribunals equitably

The fundamental basis of any disciplinary procedure should be to ensure a fair, unbiased investigation and decision. Make sure that your procedures are fair and transparent and try to handle them promptly and consistently. Remember that the purpose behind the disciplinary process is to improve performance and not to apply a pre-determined punishment.

The first thing you need to do is establish the facts of the case. This may or may not involve an investigatory meeting with your employee, depending on the nature of the issues. Your procedure should allow for the possibility of suspension where appropriate, as well as decide if you are willing to let an employee be accompanied to investigatory meetings.

If the investigation decides that there is a case to answer then the employee should be formally notified of this in writing and called to a disciplinary hearing with a specified time, date and location. They must also be given the right to be accompanied. This notice given should provide enough information about the alleged misconduct and its possible consequences to allow the employee to prepare for the hearing. Bear in mind that this issue is only an allegation at this stage. No decision has been made, so this must be approached with an open mind, allowing for the fact that the allegation may not be true or that there could be a perfectly valid explanation.

The new guidance given in The Employment Act (2008), which came into force in April, requires you to tell your employee of their right to be accompanied, a statutory right that allows another party to act in a formal capacity as a trade union representative or workplace colleague. You need to consider if you want to give wider rights regarding who can be a companion, or if you will consider requests for someone outside of these categories to act as a companion on review of individual circumstances.

Hold the meeting to discuss the issues. Remember that this is a discussion, so you do need to listen to what they and their companion say. The employee has the right to challenge the evidence and you need to give due weight and consideration to the issues that they have raised and consider further investigation if appropriate.

Once the investigations and hearings have been completed, you need to review all the information provided and consider your decision. Make sure that your decision is consistent with how the issue has been defined and decide what action, if any, should be taken. Always remember that you have the option to decide that the issue has been satisfactorily explained and there is no need to take any action. Notify the employee of your decision in writing and give them the right of appeal. Should your employee choose to appeal, you then need to write to them with the details of the appeal hearing, hold that hearing and give them the decision after the issues at the appeal have been considered. Wherever possible, try to make sure that the person carrying out the appeal was not involved in the original procedure.

Unfortunately, there is no way to guarantee that you can avoid litigation. However, if your employees can see that you are applying the procedure fairly then you should be able to reduce the likelihood of a claim and, more importantly, reduce the chance of losing at tribunal should you happen to be involved in one.