Disciplinaries: next steps

You should always start by checking your internal policies and procedures, which should reflect the ACAS Code of Practice. A different person should conduct the disciplinary meeting to the one who undertook the investigation meeting.

The disciplinary meeting should be arranged without undue delay. The employee concerned should be sent a letter, requiring them to attend a disciplinary meeting. It should include:

• A time and place for the meeting
  Wherever possible, the meeting should be held during the working day. It can be held outside of business hours if the employee agrees, but they will need to be paid their usual wage for the time taken. It should be held somewhere where you cannot be overheard and may be held online via Zoom.
  
  
• The allegations and potential seriousness
  You must give the employee sufficient information so that they understand the allegations against them. It is important to get this right. Do not describe what happened, but instead summarise the allegation. For example: Joanne’s letter might say: “Breach of safeguarding – more specifically it is alleged that you had your mobile phone about your person, in breach of our safeguarding policies”.
  
  
• Evidence
  The employee is entitled to see all the evidence that the employer has gathered in advance of the disciplinary meeting to give them an opportunity to prepare their reply or defence. This evidence should not only include the investigation report, witness statements and possible CCTV footage, but also a copy of the policy/policies that have allegedly been breached and your disciplinary procedure.
  
  
• Right to a companion
  Under the Employment Relations Act 1999, an employee must be informed in the letter of their right to bring a work colleague or trade union representative of their choice to the disciplinary meeting.
  
  
• Possible outcome
  The letter must also warn employees of the possible outcomes from the meeting. In our example, Joanne’s letter should warn her that the allegation against her is considered to be gross misconduct and there is the possibility that she could be dismissed.

At the start of the meeting, the employer should introduce all the parties such as their note taker and the employees’ companion. The note taker is there to act as a witness, and they should remain neutral.

The employer should state their concerns to the employee and give them a reasonable opportunity to respond. The employee should also have a chance to ask questions, explore the evidence and call their own witnesses.

An employee’s companion is entitled to put forward the employee’s case and may respond on the employee’s behalf. They are not, however, allowed to answer any questions put directly to the employee or continue if the employee indicates that they no longer wish them to speak on their behalf.

An employer should never give the outcome at the disciplinary meeting, no matter how obvious this may seem, as the employee may allege that this decision was pre-determined. At the close of the meeting, you should inform the employee that you will reflect on everything that has been discussed and will let them know the outcome in due course.

Any outcome should be communicated to the employee in writing, giving an explanation as to how you came to that view. This is particularly important if the employee has more than two years of service as they will be entitled written reasons for dismissal. An employer may be in breach of contract if they fail to follow that process.

In our case study, if Joanne acknowledges that she did have her phone about her person while working with the children, has previously read and understood the setting’s policies regarding safeguarding but maintains that she has done nothing wrong, then it is reasonable for the employer to conclude that this was an act of gross misconduct. Her employer should write to her explaining that as she admits to the breach of safeguarding, is aware of the rules and has offered no mitigation, she is dismissed. Joanne has the right to appeal under her employer’s policies. As the allegation is one of gross misconduct, she can be dismissed without notice.

In law, a dismissal is only triggered when an employee reads the letter – so the employer can either post the letter or hand deliver it. It is not advisable to email the outcome as this can only be marked as “sent”.