DairyCo

Rights of Both Parties

Published 3 September 10

The rights of employers and employees during the disciplinary process

In addition to previously-mentioned obligations, several other important considerations should be taken into account.

• Any official contractual disciplinary policy should be followed to the letter, or if one is not included in the contract of employment, the Acas Code of Practice on discipline and grievances at work should be used.
• Before a formal hearing takes place, employees should be provided with sufficient time in order to prepare their case and consult any representatives, and details of the complaint, the procedure to be followed and the need for them to attend.
• Employees must also be informed of their right to be accompanied at the hearing by a colleague or trade union official and be should given copies of any documents intended to be relied upon as evidence against them.
• Employees are allowed to respond to any allegations made against them and also have the right of appeal against any disciplinary decisions taken by employers and after that appeal they may take the case to an employment tribunal if still not satisfied.
• Employers should keep written records of all actions taken in the disciplinary process. This includes details - such as the date, the time and the place where they were given - of any verbal warnings.

Dealing with delays

If the employee is genuinely unable to attend the disciplinary hearing, due for example to illness, they should be offered an alternative at a reasonable date and time.

If the employee's companion cannot make the re-arranged hearing, the employee must propose another date and time which is no more than five working days after the day originally proposed, beginning with the first working day after that day.

If the employee fails to attend the rearranged hearing, this stage of the procedure is complete and a decision can be made. The employee must be informed in writing of the decision and that they have the right to appeal.

Note that if the employer or their representative cannot make the hearing, an alternative date and time must be offered to the employee.

It is important that the employee is notified in good time of any delays.

Dealing with long-term absence

A disciplinary hearing may cause an employee to be absent for some time due to illness caused by anxiety and stress in the run-up to a disciplinary hearing, particularly in long-running disciplinary procedures. If this situation arises, an employer can request a medical report from the employee's GP or an occupational health specialist, but must obtain the employee's agreement before doing so.

It is important to ask for the report to state whether or not the employee is fit enough to attend a hearing in the near future:

• If they are deemed fit enough, the hearing should be arranged with the employee and carried out in the normal way.
• If they are not deemed fit, the disciplinary procedure might not be able to be completed without unreasonable delay. In this situation, the procedure can be seen as having been completed and a decision can be made in the employee's absence. The employee must still be kept informed so that they are able to supply written material for their defence.

Suspending employees

An employer can suspend an employee pending a disciplinary hearing but this must be done in writing, informing the employee of the reason for the suspension and making it clear that the suspension itself is not a punishment. The suspension must be on full pay unless the Contract of Employment provide for this situation. The employee retains their employment rights while suspended.

While suspended, an employee may be told not to talk to other employees, but this must not stop them being able to defend themselves or this itself could be grounds for appeal.

A letter template informing an employee of suspension pending a disciplinary hearing can be found here.

Further help on disciplinary procedures, and also grievance procedures