Misconduct

It may be reasonable for your employer to suspend you on full pay, depending on the nature and seriousness of the allegations and to enable a full investigation to take place. You may be required to have an investigation meeting: this may happen before or after any suspension. The employer is not obliged to give advance notice or this or provide full information, documents or other evidence at this stage.

If your employer decides that there is a case to answer, and assuming your employer is complying with the ACAS Code of Practice (and it should!), then you will receive a letter prior to a Disciplinary Hearing setting out the allegations against you. They should also supply the evidence that will be relied on and letting you know the possible outcome of the hearing, for example a particular level of warning or dismissal, depending on the seriousness of the allegations and whether you already have unexpired warnings on your file.

The most serious allegations may be regarded as ‘Gross misconduct’.  This may result in summary dismissal (termination of your employment without notice), but this should only happen after a hearing at which you have had an opportunity to understand the allegations and evidence and to state your case.

Performance

Your employer may think you are not doing your job well enough. Depending on the employer, this may be dealt with under the disciplinary procedure or a performance management or capability procedure. Disciplinary ‘warnings’ are sometimes called ‘cautions’ in a performance procedure. The employer’s complaints about inadequate performance may or may not be justified, and may depend on whether you have received sufficient training, and whether you have sufficient resources and support to fulfil your duties, some of which may not be within your control.

Absence

Sickness absence, whether several short absences or a longer term single period of absence, may trigger a formal meeting under the employer’s attendance/absence management procedure.  A few employers use their disciplinary procedure, although recognising that sickness absence, unlike misconduct, is not an employee’s fault.

Nonetheless, ‘capability’ (which includes ill health as well as performance) is a potentially fair reason for dismissal.  A long term condition may be regarded as a disability, triggering the employer’s ‘duty to make reasonable adjustments’ under the Equality Act 2010.  

• It is nearly always a good idea to take someone with you to a formal meeting which may result in a warning or termination of your employment.  
• You have a statutory right to be accompanied by a trade union representative or a work colleague.  In certain circumstances your employer may extend this to a family member or friend (but very unlikely a solicitor!).
• It can be very useful to have someone present during the meeting – as well as being a companion to support you, you should ask them to take notes for you and they may also be able to act as a witness if required in the future.

What can you do to protect your position?

• Prepare thoroughly by:
  
  
  • Obtaining and reading the disciplinary procedure,
  • carefully reading the allegations in the letter, and 
  • looking at the evidence your employer provides;
• Consider whether there are any witnesses or other evidence that you think your employer should take into account;
• Attend the hearing, taking in a prepared written statement (this avoids important points being forgotten or left out of the notes);
• Take a companion;
• Appeal if you believe you have been unfairly sanctioned or dismissed.

How can we help?

Our experienced solicitors are well-placed to advise you on your particular circumstances.  We will give you honest, impartial advice about your situation, including letting you know at an early stage as to the strength or weakness of your position. 

If there is time, taking advice from us as soon as you know that you will be facing a disciplinary hearing can be very beneficial , so that you can be best equipped to prepare and deal with the hearing.

We can help you:

• Understand your employer’s Disciplinary or other formal procedure (e.g. capability, attendance management);
• Draft statements for hearings;
• Navigate through the Disciplinary process, including the Hearing;