It’s time for the final instalment in our seven-part blog series about the disciplinary process. In our last post we take a look at the different types of adjournment, and when and how they should be used.
There’s nothing we hate more than being the bearers of bad news, especially when it comes to telling employers who’ve dismissed blatantly guilty employees that they’re exposed to potentially valid unfair dismissal claims. However, we often are and so it makes sense for us to set out the main reasons why in the hope that we don’t have to hold the receiver away from our ears for fear of deafness as much in future.
In this post, the last in the series, we look at the importance of adjournments. Although the Acas Code of Practice on Discipline and Grievances at Work is silent in this regard, the accompanying guidance booklet states as follows in the context of disciplinary hearings:
‘Adjourn before a decision is taken about whether a disciplinary penalty is appropriate. This allows time for reflection and proper consideration. It also allows for any further checking of any matters raised, particularly if there is any dispute over facts.’
The guide also states the following in the context of disciplinary appeal hearings:
‘once the relevant issues have been thoroughly explored, summarise the facts and call an adjournment to consider the decision’
In the interests of ensuring that disciplinary hearings are conducted in a fair and consistent manner, it is advisable for an adjournment to form part of the process that is applied on every occasion, i.e.
- open the hearing;
- present the employer’s case;
- hear the employee’s case;
- adjourn for consideration of both sides’ cases;
- reach a decision, including working out how to articulate an appropriate justification for that decision;
- reconvene to communicate the decision;
- explain the right of appeal.
Prior to the point at which an adjournment to consider the decision is called, there may be reasons why one or more other, earlier, adjournments of the hearing may be necessary and / or appropriate, e.g.
- if the employee becomes unwell, angry or upset;
- if the employee presents a grievance;
- if some unexpected evidence or information is presented by the employee which needs to be discussed, considered or investigated;
- if the hearing has digressed, is taking a long time and a break is needed to refresh, recap and refocus.
The length of the above types of adjournment will depend on the circumstances. Usually a brief adjournment will be sufficient to allow an employee to regain composure if he/she is upset or angry, or to enable the Disciplining Officer to refresh, recap and refocus. Occasionally, it may be necessary to adjourn the hearing until another day. This might be appropriate if the employee becomes unwell or if the Disciplining Officer needs to take advice and/or needs to undertake further investigation.
As adjournment to consider the decision is a key stage in any disciplinary hearing, it is important that the length of the adjournment reflects the seriousness of the matter, the potential consequences for the employee and the amount of evidence presented by both sides. A short adjournment of 20 to 30 minutes might be appropriate for consideration of a small amount of evidence, on a relatively minor matter, which is most likely to result in no more than a first written warning. However, a longer adjournment should be taken for proper consideration of all the evidence on a more complex matter, and/or one which might result in a final written warning or dismissal. Fair consideration of all the facts is evidenced by an adjournment of appropriate duration, so it’s important to record the duration of the adjournment within the notes / minutes of the hearing.
During the adjournment, the manager should:
- reconsider the evidence from the investigation that was referred to during the hearing;
- review the evidence / version of events presented by the employee;
- check there are no further questions that need to be asked or facts that need to be investigated;
- refer to the employer’s rules and disciplinary procedures to establish the degree of seriousness with which to deal with the allegations and what the potential disciplinary consequences might be;
- review how historical instances of similar conduct have been dealt with by the employer; and
- consider any applicable mitigating factors and the bearing, if any, that these should have on the outcome.
In ordinary cases, it will usually be possible to reconvene the hearing within about an hour to communicate the decision. If the matter is very complex and / or the evidence extensive, it may instead be necessary to reconvene on another day. Where this is the case, the employee should be informed of the delay straight away.
Upon reconvening the hearing to communicate the decision, the Disciplining Officer should:
- thank the employee for his or her patience during the adjournment;
- outline the evidence that has been considered;
- explain the decision and justification for it;
- explain the duration of any warnings and any other disciplinary implications of the decision; and
- explain the right of appeal.
In all cases, written confirmation of the decision should follow.
Chris Nagel, Director / Head of HR at EML, comments…
“Quite simply, communicating a decision at the end of the meeting without a break can give the impression that (1) the outcome was prejudged; and/or (2) that the matter hasn’t been granted due consideration. My own preference is for the Disciplining Officer to keep a written record of all that he / she considers during the adjournment. This then serves as evidence of what was considered and of the decision-making process in general. It can also be used as the basis of the written decision and the explanation / justification that should form part of this correspondence.”
If you are an employer and would like to discuss any of the issues touched on in this series of posts, please contact one of our HR consultants in confidence and without delay for some initial advice free of charge and without obligation.