I'm a Disciplinary Officer, Get Me Out of Here! Tips from a barrister on how to approach a disciplinary hearing
Nick Singer is an employment barrister. He has been involved in countless unfair dismissal and discrimination cases, many of which went to Tribunal. Here he gives some helpful tips for disciplinary officers in organisations both large and small.
- Empathise. The best disciplinary officers I have met genuinely put themselves in the position of the employee imagining how they would feel if their livelihood was at stake. This attitude, in my experience, ensures a more thorough and fair approach.
- Go in with a genuinely open mind. The way you see the evidence and what is said during the proceedings will be affected by your mindset at the start.
- Read the ACAS Code and follow it unless there is an exceptionally good reason to depart from it. Ideally, read the ACAS Guide too.
- Read your employer’s procedure and follow it unless there is an exceptionally good reason to depart from it. I am amazed at how unfamiliar many managers are with their own procedure. It can make the dismissal unfair but also make you look foolish as a witness.
- Think carefully about the disciplinary charge. What has the employee done wrong? Make sure it is very clear in the invite to disciplinary letter. Try to break it down as much as you can. Make sure you are clear yourself what it means.
- Always read the papers carefully in advance and prepare questions. I have seen meeting notes where the disciplinary officer does not really know what the case is about.
- At the meeting let the employee speak and listen to them. Genuinely listen. Do not get into an argument.
- Investigate, investigate, investigate. If you follow the ACAS Code and Guide and your own procedure you are likely to have followed a broadly fair procedure. Due to the way the law is framed it is difficult for a Tribunal to go behind what you think happened and the sanction you impose. I have found a line of investigation not or poorly pursued is often the easiest way for the Tribunal to find a dismissal unfair.
- Record everything. Get an agreed set of minutes from meetings and write down your decision in detail. It is good practice, protects you and your employer and makes it so much easier for me at Tribunal to prepare the case.
- Check how your employer has dealt with similar incidences in the past. You want to ensure there is fairness and consistency in the approach of the employer and it makes you look extra thorough at Tribunal.
- Take your time. I know you have a day job and that will be neglected, but the cost to your employer if you get it wrong is likely to be far higher than if you neglect your day job for a day or two.
Finally, note that Nick wrote this on 9th June 2016. It is not intended to be legal advice and should not be relied upon as such. If faced with a disciplinary, it is highly advisable to contact your HR department and/or an employment lawyer.