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A Question of Discipline
Over the past couple of years, employment lawyers and tribunals alike have been kept busy interpreting the finer points of the Dispute Resolution Regulations and writing learned articles about knotty issues such as the precise meaning of the reversal of Polkey. But for the people at the coal face - the HR professionals and line managers who have to go out and put the Regulations into practice, the debate surrounding these issues is for the most part academic (and probably quite irritating). So this month we are taking a look at the practicalities of disciplinary hearings and dealing with the sorts of questions and issues which can cause real problems in the real world. |
Q: Are employees entitled to record disciplinary hearings and discussions?
A: The short answer to this question is no. An employee has no right to record a hearing and it is not "unfair" to refuse permission. An employee´s right is to bring a colleague or trade union representative along to the disciplinary hearing to take a note of the hearing if they feel this is necessary and of course it is best practice to provide the employee with its note of the hearing, |
Q: What if an employee covertly records a hearing?
A: This in itself may be treated as a disciplinary matter, particularly if the employee has already been refused permission to make a recording. More seriously, a covert recording may be admissible as evidence in an employment tribunal, notwithstanding the way it has been obtained. Clearly a recording of the disciplinary hearing itself is unlikely to be controversial, however, in the recent Employment case of Chairman and Governors of Amwell View School v Dogherty, the EAT debated whether a covert recording of the disciplinary panel´s private deliberations should be admissible as evidence. In that case, it was decided that it should not on grounds of public policy, however, the EAT commented that the decision might have been different had the case involved discrimination. |
Q: So how can employers avoid this happening in the first place?
A: Firstly, make sure that covert recording of meetings and hearings is included in the list of serious misconduct in the disciplinary procedure so that employees are in no doubt that this is a disciplinary matter. Secondly, where a disciplinary hearing is adjourned in order to make a decision on the outcome, ensure that neither the employee nor his representative leaves any bags or files in the room where the discussions will take place. Remember also that any notes or internal communications, including emails, relating to the disciplinary hearing will be disclosable in any future employment tribunal proceedings so don't commit to paper anything which you would not want an employment tribunal to see (such as commercially sensitive information for example). |
Q: Can witnesses in disciplinary proceedings remain anonymous?
A: This is a problem which occurs relatively rarely but can be extremely problematical when it does come up. An employment tribunal will look to see whether an employer has held a full and fair investigation into an allegation of misconduct and presented the "accused" employee with full details of the case against him. This will often include written statements from witnesses and it is only fair that the accused employee should know the identity of those witnesses in order to be able to counter the evidence against him. Against this background, a request for anonymity must be treated very carefully.
An employer should investigate the reason for the request, consider the character and background of the witness in question and where possible, obtain corroborating evidence from other sources. It is only in exceptional circumstances, where there is a real risk to the health and safety of the witness that an employer should agree to protect the witness´ identity. In that case, the accused employee should be given copies of statements and documents in which the name of the anonymous witness has been deleted. Full, unedited statements should be retained for the employer´s own records.
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Q: Do I have to postpone a disciplinary hearing where the employee fails to attend?
A: If an employee is unable to attend a hearing due to unforeseen illness or circumstances out of his control then, under the statutory DDPs, the employer should rearrange the meeting. If the employee asks for a second postponement or does not turn up, then it will not be automatically unfair under the statutory DDPs for the employer to proceed with the hearing and reach a decision in the employee´s absence. However, the 'two strikes' rule only deals with the position under the statutory DDPs. It may still be unfair under general principles to proceed in this way. In most cases, the safe approach where an employee cannot attend a hearing (particularly if for health reasons) is to set a further date when the employee will be able to attend. |
Q: If an employee goes off sick with stress, how long do I have to wait?
A: In an ideal world, an employer should wait until the employee is fit enough to return to work and then reschedule the disciplinary hearing. In the real world, an employee may remain off work for what promises to be an indefinite period or return to work but go off sick again when a new disciplinary date is set. It is difficult but there is a way forward. Approach the employee´s doctor (with his consent) and obtain a medical opinion as to when the employee will be fit enough to attend a hearing and/or when he is likely to return to work, and act on that advice. Consider offering to hold the hearing at the employee´s home or an outside venue, by telephone conference call or video link or dealing with the disciplinary issue by way of written representations. Remember it is advisable to obtain medical advice before taking any steps which may lead to a dismissal. Where an employee will not cooperate, whether by refusing consent to approach his doctor or refusing to take part in an alternative resolution of the disciplinary issue in line with medical advice, an employer is entitled to take a decision based on the information which is available - having given a clear warning to the employee that this is what will happen if he refuses to cooperate.
A final note - it is always worth taking professional advice when dealing with this sort of situation. Symptoms of anxiety and stress are an understandable and fairly common reaction to disciplinary proceedings, however, in some cases these symptoms may be an indication of a more serious condition such as depression. If an employee becomes more seriously and chronically ill it is possible that he may be "disabled" for the purposes of the Disability Discrimination Act, in which case it may be discriminatory as well as unfair to proceed with disciplinary proceedings in the employee´s absence.
If you would like any more information about this, or related employment matters, please do not hesitate to contact Adrian Berkeley, Head of the Employment department, on 0161 371 0011 or by e-mail: post@claim.co.uk
This newsletter contains Information on current legal issues applicable at February 2007. Note there may have been changes subsequently which have not been incorporated into the material. This newsletter is intended for Information purposes only and its contents should not be applied to any particular set of facts or relied upon without legal or other professional advice. |
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