Employment Advice

Can you be sacked at a disciplinary hearing?

A disciplinary hearing is a formal meeting between employer and employee, at which allegations of misconduct against the employee will be discussed.

16 May 2023

Team name
Esther Marshall

Esther Marshall

The purpose of the hearing is for the employer to explain the allegations of misconduct made against the employee, and for the employee to give their version of events, as well as explaining any underlying reasons for their behaviour.

It is vital that both employer and employee understand what the outcome of the hearing could be. Hearings should be conducted in line with the employer’s disciplinary procedure and / or the ACAS guidance. If dismissal is a possible outcome, then this must be made clear to the employee before the hearing.

Grounds for Disciplinary Action

The types of behaviour that will be considered misconduct will usually be set out in the employer’s disciplinary procedure. Usually, conduct that is violent, discriminatory, dishonest, and serious insubordination, will be deemed gross misconduct, in respect of which dismissal may result. Less serious behaviours, such as persistent lateness or unauthorised absence will usually be viewed as misconduct.

In determining what, if any, action is appropriate, the employer must consider all the circumstances around the alleged conduct, including anything the employee has offered in mitigation i.e. anything which explains why they behaved as they did. The employer must also consider how other employees who have committed the same misconduct have been dealt with, to ensure consistency.

If the employer fails to act in accordance with their disciplinary procedure, then the employee may have a case for Unfair Dismissal.

Possible outcomes of Disciplinary Hearing

There are several possible outcomes of a disciplinary hearing. If the allegations against the employee are not proven and / or the employee has can show mitigating reasons for their behaviour, then no action may be the appropriate outcome.

For less serious acts of misconduct, especially where the employee has an otherwise clean disciplinary record, a first warning may be suitable. For conduct which falls short of gross misconduct, or a second instance of less serious misconduct, a final written warning may be given.

Where the employee is found to have committed an act of gross misconduct (even if it is their first offence), or where the employee is already on a final written warning, the outcome may be dismissal without notice.

Your Rights during a Disciplinary Hearing

An employee has a right to be accompanied at the hearing by a Trade Union representative or work colleague. There is no legal right for an employee to bring a solicitor to a disciplinary hearing.

The employee must be given the right to respond to the allegations against them, including calling witnesses to give evidence on their behalf.

The employee must be given the right to appeal against the outcome of the hearing. Examples of grounds for appeal include a lack of fair procedure at the original hearing, or if the sanction imposed is inconsistent with the way in which other employees have been dealt with.

Appeals should be dealt with speedily, and by someone in a senior position who was not involved in the original disciplinary procedure.

M&P Commentary

Esther Marshall, Member, Solicitor and specialist in employment law, said:

“Our employment law team has over 20 years of experience advising both employers and employees.

If you are an employee who has been dismissed following a disciplinary hearing, Mullis & Peake can advise as to whether you have grounds to bring a claim for Unfair Dismissal. If you do, we can represent you throughout the entire Tribunal process. It is vital to note that as a general rule, a claim for Unfair Dismissal must be issued no later than 3 months less one day from the date of dismissal.

For employers, we can guide you through the disciplinary procedure to make sure that you follow a fair process and reduce the risk of an Unfair Dismissal claim. We are also able to draft disciplinary procedures, or review existing procedures, to ensure that they are robust and compliant with ACAS guidance. “

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