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Disciplinary hearings: Key planning steps

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Paul & Gearalt from the Employment team talking through Disciplinary Hearings. From what you need ahead of time, the best way to proceed - and how to document the process.

In this podcast (40 minutes) our Employment partners, Paul Ball and Gearalt Fahy, take a look at the key steps you can take to prepare for a disciplinary hearings. Paul and Gearalt share their thoughts on what you can do to prepare and what needs to be considered: 

  • What should you do to prepare for a disciplinary hearings?
  • What are the key things to consider when taking part in a disciplinary hearing?
  • What are the roles of the disciplinary manager and champion?
  • What's the best practice for documenting a disciplinary hearings?

Host: Let's start at the very beginning. What should you do to prepare for a disciplinary hearing?

Paul Ball: Okay, so, I'll come this from two perspectives. One is what you do to make sure the individual who is facing the disciplinary hearing knows about it. And then the second part is if you're the person who's gonna be conducting the disciplinary hearing, what you should do to be prepared.

So from the perspective of the person who is facing the disciplinary hearing, they need to be informed of the time, the date, the place, the right to be accompanied by a work colleague or a trade union representative. They need to know what the disciplinary hearing's gonna be discussing. So that is either a list of the allegations that are going to be considered or if it can't be something that is detailed so specifically in generic terms, but it's about your behaviour in the workplace, specifically your behaviour towards various colleagues, which could constitute bullying and harassment, ask for the detail then and then you attach the evidence that you've got to support that, which should've come out in earlier investigation, that being the evidence that the disciplining manager has also got, and that he or she will consider at the disciplinary hearing.

And the idea behind that letter, that communication, to the individual is so that when the disciplinary hearing comes around, they have had the opportunity to know what it is that they are accused of, to have time to prepare, if need be, to speak to a colleague or a union representative who's gonna be their companion, and or prepare to be able to state their case or to respond accordingly to the allegations against them, so that they aren't ambushed at a disciplinary hearing with surprise allegations that have come to light.

Gearalt Fahy: And the one thing to add to that is that the individual should be aware of the potential consequences.

Paul Ball: Yeah.

Gearalt Fahy: If one or more of the allegations are found proven, so the obvious we'd come back to a disciplinary situation, if it's an allegation of gross misconduct, then it could result in summary dismissal and the termination of employment. And that's something the tribunals are often critical of, and will often look out for because if you don't know that this is sufficiently serious to lead to the termination of your employment, you may not prepare in the same way.

Paul Ball: Yeah that's right. Absolutely, and I think you make a good point in there, G. If you don't put that in the letter, that of itself, if the decision then is dismissal, and you haven't said in advance that that could be one outcome, there've been cases where the tribunals concluded that omission in the letter of itself is sufficient for the dismissal to be unfair.

Gearalt Fahy: Yes.

Paul Ball: So it is an important point, it's a good point to raise. So going back to then I said from the perspective of the manager, what we do to prepare. Well, you need to make sure that you have set aside adequate time for it, and by that, I mean time not just for the meeting, but also a little bit of time beforehand to prepare. That will be reading through the papers. You don't wanna go into a disciplinary hearing, "Well, what are we here for? I've got no idea." You want to prepare. So you've read through what it is that the individual has been provided within the letter we've just talked about.

You'd also wanna make sure that you're familiar with the disciplinary procedure, and any other relevant procedures that the individual may have been accused of having breached. So, it surprises me still how many times disciplinary hearings have taken place where that hasn't been clear. The process that's being followed isn't particularly clear. So familiarize yourself with the disciplinary procedure and the roles of anybody else who's gonna be there. Make sure you arrange to have a note-taker to assist at the disciplinary hearing.

Now this is similar to when we've talked about investigations. Also, start thinking about preparing broad question areas that you might want to raise with the individual. Without that being so prescriptive, the all of you have is the list of questions that you go through. So broad question areas of the points of concern based on the information that's being brought to light and what the individual is being accused of. The idea is, you need to be able to form a view at the disciplinary hearing, on balance, whether that accusation appears to be substantiated or not. The person has done it or they haven't done it, on balance. So what kind of information would you need in addition to what's there to ask that person to be able to reach a view? Did you or didn't you do it?

Gearalt Fahy: Yes, and by ... It's a case of putting the available evidence to the individual in relation to the specific allegation, ending with, "And what do you have to say about this?" So that Mr X says this, Mr Y says that, and we also have all of these documents, which point toward one thing. "What have you got to say in response?" And it's illicit in that response and again, coming back to your listening skills, it's listening very carefully to what the individual has to say. So understanding the allegations and understanding the evidence is particularly important.

Paul Ball: I also use my listening skills to think back to what you've just been saying that going back to the letter to the individual, the A cast code talks about the individual have the right to present witness evidence and other evidence of their own.

Gearalt Fahy: Yes.

Paul Ball: Now, it's not something I would necessarily actively encourage to have witnesses be called at a disciplinary hearing, but the individual can present witness evidence or other documentation in support of their case, and that's something that you can flag up in the letter to them.

Gearalt Fahy: Yeah, involving witnesses in a disciplinary hearing is not to be encouraged.

Paul Ball: No, I wouldn't either, particularly if the person accused wants the accuser there. That's, I think, a no-no.

Gearalt Fahy: Yeah, and I think that it's one thing for the code to include that. I can't think of one case in my career where a witness has attended to comment at the actual meeting itself. So yes it's guidance, and the A cast code is guidance.

Paul Ball: What is more common, though, is the person who's done the investigation going to the disciplinary hearing.

Gearalt Fahy: Absolutely.

Paul Ball: And their role, and this is going back to the point about what would you do as a disciplining manager to prepare for the disciplinary hearing, is also knowing that I'm gonna have to ask questions or at least ask the person who's done the investigation to explain why it was that he or she has reached the conclusions that they reached in their investigation that's led to me having this meeting today to consider disciplining the employee. And knowing that the employee has got the opportunity to challenge what that investigator is putting to me.

Gearalt Fahy: Yeah, as far as additional witnesses are concerned, though, I would be more inclined to wait to make a determination about that at the disciplinary hearing itself. So if the individual says, "Well, I want you to speak to whoever." Well yes, you can go away and do further investigation, speak to that individual. I suppose it always comes back to how comprehensive your investigation is. If there is a crack and someone hasn't been spoken to who is important, then absolutely speak with the individual. But that's not the same thing as needing them to come along to the meeting, because the other individuals aren't at the meeting. So it can actually be a good reason not.

Paul Ball: I think that's right.

Host: But I'm guessing all of that would've been dealt with in the initial investigation. If you're at the disciplinary hearing and then there's kind of new witnesses being brought into play, has the investigation failed in some way?

Paul Ball: Well, it happens more often than you might think.

Host: Right, okay.

Paul Ball: Let's face it because we're talking about doing an ideal investigation, even within the remix of an internal process. It's not infrequent that during the disciplinary hearing, the person accused will say, "Well, the investigator didn't speak to X, Y. I don't know, if they had spoken to them, you might've got a different idea about what exactly has happened."

And going back to the point you were just saying before, G, I think in that scenario, absolutely what the disciplining manager should be doing is, "Okay, well, before I make a decision, I'll speak to those people."

Gearalt Fahy: The time to reach a decision as to whether or not a disciplinary investigation has failed, I would say is at the end, because the disciplinary investigation is an ongoing process and it's often misunderstood. And the investigation is seen as something which is distinct from the disciplinary hearing. It's a disciplinary investigation. The investigation which takes place prior is a preliminary stage. I look at it as almost a seamless process.

Paul Ball: It certainly doesn't just finish with the report, does it?

Gearalt Fahy: No, absolutely not. And so if someone ... I would almost want someone to point that out during the disciplinary hearing because the worst situation is to find that out later. So if you are faced with tribunal proceedings and they argue that it was unfair because we didn't speak to A, B, C, and they could've said this, that, and the other, then that's at a point where you can't actually remedy the situation and do anything about it.

Paul Ball: What all of these things to me, though, is part of the preparation for a disciplinary hearing is don't be prescriptive about what you will or won't do, or will or won't allow during the disciplinary hearing. You have to have that kind of flexibility to realize or to accept that if things are sad, to unbar the individual at the disciplinary hearing, that might be something you have to reflect on and look into further before you go ahead and make your decision.

Gearalt Fahy: I would put it like this: have a can-do attitude, rather than more, "Well we can't do that because we've done the investigation." Within reason. It comes back to carrying out an investigation that's reasonable. If someone is saying to speak to all of these people and you know that that's not actually going to help them, that's just a waste of time, then say that, but only say it if you're confident that that's the case.

Host: So just going back half a step, when you were saying about sending the letter out to communicate there's gonna be a disciplinary hearing, this is the potential result of the disciplinary hearing, is it worth putting in that decision may not be reached on the day? It may be another time. Is that something that needs to be clarified?

Paul Ball: Well I think we see, we do see this ... I'm laughing because the number of times that I might have said to a client, "Don't forget to put in the letter that one outcome might be the termination of your employment if the allegations are substantiated." And they might then send me their draft letter, just for a sense check, and it might be written, "The outcome of the hearing's gonna be the termination of your employment."

"No, that's not what I said!" Kinda scratch and reword it, so it's about how you phrase it. And you do use that kind of couch terms, don't you? You need to be aware that these allegations that you're facing are very serious, and if they are substantiated, you also need to be aware that one outcome might be a decision to terminate your employment summarily without notice and without pay in lieu of notice, or something like that.

Gearalt Fahy: But a letter wouldn't ordinarily say that we might not make a decision there and then? But I think that's probably something we'll come onto, 'cause that is quite common not to actually reach a decision there and then.

Host: You've mentioned the disciplinary manager a couple of times. Just expand on what their role is during the hearing.

Gearalt Fahy: It's a position of some responsibility.

Paul Ball: Yeah.

Gearalt Fahy: Because you are making a decision about potentially someone's future employment with your organization, which may impact on them in their future careers. So, it certainly isn't something that should be taken lightly. So it's that individual who ultimately has to make the call as to whether to take formal action.

Paul Ball: You're absolutely right. It's a really important role. Let's be clear about it. If there is a dismissal and then an unfair dismissal claim arises, you are a witness [00:12:23]. You know, you are the person whose decision is called into question first and foremost. You'll be asked to explain why it is you reached that decision, or why the reason of you to reach that decision based on what happened at the disciplinary hearing and anything else that you did to deliberate on that particular decision. So, you need to be a strong person, but also it needs to be somebody who is able to take advice, soundings from human resources on things like what the organization has done in the past. Needs to understand policies and procedures, and have an overall grasp on the workplace.

Gearalt Fahy: The thing that's easy to forget is that although this is one decision that you as a manager may make out of 20 in a given day, that's all forgotten when this sees the light of day of tribunal and you're sat in front of the tribunal because what the tribunal does, is it puts a great big microscope on that particular decision that you made. And so the tribunal don't care that you were so busy that day or that week or there were other commercial pressures. They expect you, rightly or wrongly, to have given it all of the care and attention that it needed because it was so important to reach an outcome. So that's really important and it's almost looking at it in reverse because what you do and how you deal with the hearing and the further investigation will come under scrutiny.

Host: Are there any best practices that you can talk about or tips you can give about just about conducting a hearing?

Paul Ball: Yeah, well there are two things that immediately spring to mind. One is sort of the housekeeping and introductory points that really should be ticked off without any great fuss, but it's worthwhile doing them and making sure you do them as a matter of practice. And the second bit is what you actually do to conduct the hearing.

Gearalt Fahy: Yeah, on that first point, it's really about explaining the purpose of the hearing or the meeting while you're there. Explaining who you are if they don't know who you are, your role in the investigation. Perhaps reminding them of the steps that have been taken as part of an investigation. You might want to check that they have received the letter that invited them to the meeting, they understand it. Also, ensuring that they have had sight of the evidence that you're going to be referring to during the hearing and have had an opportunity to consider that. If they suggest that perhaps they haven't, then you may want to have a brief adjournment to ensure that they have had sufficient opportunity to review it. Other than that, it's you would want to check with them that they understand that they have the right to be accompanied. It may be obvious because they have their companion. If not, remind them that they have the right to be accompanied by a trade union representative or a work colleague and that they understand that they are attending without that individual.

Paul Ball: And where they do have a companion, I'd say a little bit about what the role of the companion is.

Gearalt Fahy: Absolutely.

Paul Ball: So that role is to provide support, they're entitled to put statements or make statements on behalf of the employee. What they're not allowed to do is answer questions on behalf of the employee. But accept the ground rules in terms of that, at the outset, just in case the companion doesn't know or does know very well what their role is and is happy to interfere as much as possible.

Gearalt Fahy: Yeah, they're there to assist and to discuss privately, or otherwise, what's being discussed at the hearing. I would remind them that if they want to seek a short adjournment at any point then they should say.

Paul Ball: Yeah. When it comes to the main parts of the hearing then, the role of the disciplining manager is really to reach a decision on the allegations that the person is facing. And the way to do that, or a good way to do that, is to go through the evidence that has been obtained and sent to the individual. That might be by having the investigating manager there and talking through how they did the investigation and why it is that he or she reached the particular conclusions they reached in their investigation. Or if they're not, then simply going through the evidence and then asking questions of the individual, as to whether they accept that's an accurate statement or not. And this is quite important. Then asking the individual have they got anything to say or any other evidence that they want me to consider before I reach a decision on that particular point.

And this is something that I think is also important, which is then if the individual accepts something that is different or cast doubt on the evidence that's been obtained in the pack that's being presented to them, asking why then there is that difference, and if they can think of any reason why it is that he or she is saying one thing, but an investigation has concluded something completely different. It helps you weigh up credibility if nothing else, but it also can help you identify possible further inquiries that might need to be done, which is particularly relevant in serious cases where you are dealing with a case that could lead to dismissal as opposed to being a lesser sanction.

So the idea, what I'm trying to describe there is it's not a one-way street, it's a proper discussion and analysis of the allegation, your response and challenging that to get a proper understanding of whether I understand what you're saying and believing what you're saying before having gone through all of those and take things away to consider my conclusions.

Gearalt Fahy: So I would add to that it's about having an inquiring mind. So trying to really form your own view as to what happened or didn't happen. And that's important. In terms of potential inconsistencies between what the individual's saying and what someone else has said, the other thing to look out for is what the individual themselves said when first interviewed because when you talk about credibility, Paul, it's quite common that someone would say one thing at the investigation stage and may then say something else that is slightly different. Now that would be something that would help you in reaching your decision and may tip the balance one way or the other in terms of whether you believe their account of events.

Paul Ball: It's not uncommon for people to have a different version of events between the first interview at the investigation stage where they may be, for example, told about the allegation and suspended while the investigation takes place, then something a little bit different when it comes to the more formal investigation interview. And then a yet different explanation when it comes to a disciplinary hearing. And you're quite right, highlighting those differences and asking for why it is it appears that they're saying different things at each time, I think is a relevant thing, a useful thing to be doing. Because again, it helps establish credibility, doesn't it?

Gearalt Fahy: Yeah, and I think that deep down, anyone can remember what happened and can say what happened, and they can recount that in some shape or form, especially if you're the person who's in that position. What's obvious is where there are inconsistencies. It's harder to remember a lie.

Paul Ball: Yeah.

Gearalt Fahy: It's harder to remember something that didn't happen, and so that's where you can see cracks in an account of the events.

Host: Explain to me what the adjournment is for. Talk to me a little bit about that, and talk about what happens next.

Paul Ball: Well let's assume you've gone through the disciplinary hearing and you've explored in detail the allegations that have come out during the investigation stage, and you've asked the individual for their responses. The adjournment might have taken a number of forms. It might be something very brief. A person might have accepted that they did the thing they're accused of and just be basically pleading mitigation, or explaining why it happened. More likely is that the individual will say it didn't happen in quite the way it's been accused or here's my explanation for it, and you also need to speak X, Y and Z, and there are some further inquiries required.

So the adjournment might be shorter or longer depending on where the disciplinary hearing has gone. But let's just assume that you're on the point where all further avenues have been reasonably explored. So you've got a handle on everything that you're reasonably gonna be able to get a hold of. The individual knows that you've given them the opportunity to have any sort of further say. Well, the adjournment, actually I think it is, it's a really important stage and it's something that you as the manager can use effectively to make what may happen in the future much more straightforward.

The idea is you use it to analyze what you've heard and make your decision. That might be something that's easy to do. You might be clear in your head about what that decision is, but you should also use the adjournment to document your thinking and why it is that you're reaching that particular conclusion. So allegation, substantiated or not, next allegation substantiated or not. Why? What have you heard, for and against, why? This goes back to something similar we talked about with investigations and pulling together conclusions in an investigation report. But at the disciplinary stage, it's very much I would be saying, which of this allegation do you think it's substantiated or not? Why do you think it's substantiated? Why is it you've reached that particular conclusion?

And do that for all of them. And then, weighing up, okay, so I think the allegations appear to be substantiated? What does that mean if they are? What does that then mean? Is it misconduct? Is it gross misconduct? Why do I think it's misconduct? Why do I think it's gross misconduct? And documenting your thinking on this, not on any great level of detail, but just noting that you're doing this.

Gearalt Fahy: Yeah.

Paul Ball: That helps you when it comes to writing your decision. It also helps you if you're in a tribunal in six, eight months, ten months time, explaining what you did during the adjournment 'cause it's a useful sort of aid memoir. But at that point in time, it's helpful 'cause it helps you gather your thoughts as to is this serious? Is it incredibly serious? Or is it perhaps storming a teacup that warrants something less severe happening? So it's almost pulling together what it is you're concluding and why you're reaching that particular conclusion. And then the final thing before I'll let G speak up is taking soundings, speaking with HR, who should either have participated as a note-taker or be available as a sounding board to decide, okay, these are my conclusions. Does not appear to be something that is consistent with the approach that so far as you're aware that the organization has taken elsewhere or am I just way outside?

And the idea behind that is you may have heard this phrase, the range of reasonable responses. The decision has to be something that's in the range of reasonable response of a reasonable employer. So if you're making a sort of really left field decision on something, you'd at least want to know that. You wanna try and make sure wherever possible your decision is one that does fall within that range.

Gearalt Fahy: So all of what Paul's just said is absolutely right, but clearly quite involved. So, the question that's often asked is, "Well, you know, how long will this take?" Well, that really depends. What it shouldn't be is quick, because that suggests a pre-determined decision. If it's a straightforward issue, then that could be considered dealt with perhaps on the day with a letter to follow. But it's rare to see a straightforward single issue disciplinary investigation, so more often than not, my advice to an employer is to step away. Step back, adjourn the hearing and confirm the outcome. When you're deliberated, you may have further investigations to take place. If there are further investigations, you may need to reconvene the hearing, but at the very least, take the time and step away from the matter that you're investigating before reaching a decision.

Paul Ball: I think it's about that taking stock is quite important. I mean, the technique that I found, I've spoken to clients about using this and they've said they've found it useful, particularly if they're not that experienced at dealing with things is almost using, you know, separating out each of the allegations and listing them on a separate sheet of paper heading and then drawing a line down the middle. And then just putting a plus and a minus, or a tick and a cross on either side of the line, and then just summarizing, just summary notes of what you've heard that is for or against. And it's not a precise science, but if you do that for each allegation, it'll allow you, as you're looking through your notes and you're looking through the other documentation, to say, "Okay, on balance, where is this pointing me?"

Paul Ball: You keep that, that becomes a relevant sort of paper trail as part of the decision-making process and as part of an important tribunal bundle in due court. But more importantly, it allows ... If it's something that appears to be in the balance, it's something at least shows you were thinking why it was that a decision one way or the other was the one you were going to be reaching.

Gearalt Fahy: What we've, you know, what we're describing could just as easily be the role of the panel of an employment tribunal.

Host: Yeah.

Gearalt Fahy: Because they will ultimately if it ends up there, they'll ultimately be making the same decision. What we're talking about is good practice and indeed it's the practice that's most commonly followed by tribunal these days because, you know, when Paul and I started out as employment lawyers, cases seemed to be more straightforward. Now they're just not.

Paul Ball: Yeah.

Gearalt Fahy: And, you know, and judges can take weeks before they will reach a deliberation on a particular case, and so you shouldn't be afraid to take the time.

Paul Ball: I think that's right. And what we're talking about, we talk a lot is really about sort of, particularly me, about the paper trail and then documenting it. And I make no apologies for doing that, but that's because when it comes to an employment tribunal, tribunals will hear witness evidence and the witness might say, "Well, I've made the decision for this reason, blah blah blah." A tribunal judge will say, "What documents prove that that's what you did?" Or, more importantly, when you're giving your evidence, you can say, "This is what I did, and here are the notes that I took at the time, or repaired at the time, which reinforce that that's the decision that I took at that time and why I took that decision at that time."

Let me tell you, it's a big tick in the eyes of that tribunal judge that this person is somebody who applied their mind and acted in a thorough and diligent way. Their creatures of statutes are employed at tribunals and they're all about the process. They want the evidence, they want to see evidence of a reasonable process having been followed. So anything that you can do to show the process that you followed to reach your decision is a very big tick in your favour in the event a claim arises.

Gearalt Fahy: If it looks like a reasonable process, then a right-thinking panel will have it in their mind that it probably was. If it looks like corners were cut and decisions were rushed, then they'll have that in their mind. So it's certainly worth considering.

Host: A question that I got which is gonna be a really short answer because then what I wanna do is talk a little bit more and expand on this, the making of that final decision. You mentioned deliberations. Is there any kind of timescale you should be looking at with deliberations? For a disciplinary hearing, can the deliberations go on for days or weeks? Or are you talking more hours and days?

Gearalt Fahy: I think it's more minutes and hours than it is days. I would always suggest stepping back and you may even have preplanned to have a morning of time to consider your decision and to prepare a decision. That might be the following day, it might be that week. But there isn't any right or wrong answer.

Host: Okay, talking about then that making of that decision, following on from a disciplinary hearing. What needs to go into it? What should be in your thinking? So if there's, for instance, an expired disciplinary warning, should that be taken into account? Do you look at relevant mitigating or aggravating factors? How do you approach this? How do you approach this decision?

Paul Ball: Okay, well, I mean, there's a number of things that need to be taken into account. The starting point is what are the allegations that I believe have been substantiated? And what do they correlate to in terms of categories of behaviour or misconduct that have set out in the company's disciplinary procedure or code of conduct if we have one? Or if we don't have one, then what A cast code and guidance would help guide me about? That's a starting point.

So, is the behaviour one that is gross misconduct? Or minor misconduct? And, the thing with gross misconduct, there'll be certain categories. But you need to understand, you know, whether the behaviour falls squarely into that or not. And if you conclude that it does, the starting point with gross misconduct would typically be what you've done is so serious, it's fundamentally destroyed trust and confidence. How can continue to employ somebody who'd behave like that when we've certainly made it clear that behaviour is beyond the pale?

So the starting point with a behaviour that counts as gross misconduct would normally be termination of employment immediately, but without pay and lieu of notice. The kind of factors that you might take into account to not make that decision might be if there's, for example, been any degree of provocation, undue pressure, lack of awareness that the behaviour was gross misconduct, the amount of contrition, previous good character or record. Things that would weigh in favour of a decision to dismiss would be whether the person has got previous warnings for doing that, which are still live. You asked about expired warnings. That's an interesting one because you do get situations where some employees may have a quite a long or checkered past, quite a long record of previous warnings of a certain degree. And the behaviour talking about might not be so serious that it's gross misconduct, but it would still lead to termination of employment on almost like a totting up kind of arrangement, but for the fact, the warning has lapsed.

Well, the starting point when you talk about lapsed warnings is it's lapsed. It's something that you shouldn't be taking into account in tipping the person over into dismissals, save in the most exceptional circumstances. And the most exceptional circumstances would be if the previous warning had been given as a lenient penalty and expressed as a lenient penalty where previously the person ... the behaviour that led to the final warning that's now lapsed with one more could've been gross misconduct, but the employer had for various reasons decided to give the person a second chance. And I would only ever suggest that an expired warning should be used in that scenario where at the time that warning was given, it was made clear that that was a lenient penalty, and that it might only be on the record for 12 months but if there's any repetition of the same kind of behaviour, then you reserve the right to take it into account beyond that 12-month period.

But the starting point is that you should be wary about using lapsed warnings. But you can look at current warnings and that's current warnings for different behaviour as well. It doesn't have to be for the same kind of thing.

Gearalt Fahy: I think that's right, but it's not something that you necessarily need to ignore in that if a decision is genuinely in the balance, if we're looking say at an allegation of gross misconduct, and when looking at everything in the round, the factors that you explained, Paul, if someone has got a previous warning, albeit expired, for perhaps maybe a similar related issue, then it does suggest that they haven't learned from their previous experiences. And it may be a factor which would tip the balance one way or another.

Paul Ball: Yeah, I think that's right. And I think the way the case lawyers developed on that is that if the behaviour itself now is sufficiently serious that you could dismiss and actually an expired warning is almost like the tipping point, then that tends to be acceptable whereas if the previous behaviour was the main reason why you're deciding to dismiss now, yes, and that's a bit nuanced.

Gearalt Fahy: Yeah.

Paul Ball: Then that could be likely, or would be likely to be unfair. So often it comes down to how you explain you're taking into account the previous warning in comparison with what's happened now, can be a bit of a fine line. What I would say is that if that is the decision you are thinking of taking and taking into account lapsed warnings before you make that decision, it would be worthwhile picking up the phone to a lawyer for a sense check on that, on a previous warning, because you could be ... how you phrase it could mean it's the difference between a fair or an unfair dismissal.

Gearalt Fahy: Yeah.

Host: So I guess what you're saying is if the ... So for instance, if the expired, if the lapsed warning was about racist language in the office, or the thing that the allegation and the disciplinary hearing is about fraud, for instance, you don't consider that. I mean, well, for the start, they're clearly a terrible employee. What on earth have you got this person in for? But, you know, you don't consider the lapsed one because it has nothing to do with this current allegation.

Paul Ball: I think that's broadly right, although there are cases where a person has ended up being dismissed simply because, as you say, G, are they gonna improve? And they've got a record that is longer than your arm, you know, umpteen previous warnings or spoken to informally, and things like that. And that could be for a variety of different things, including, as you say, something completely different than what they're accused of now. And in that scenario, then it might be more appropriate to take that into account as like the tipping point. But I think if they haven't got a long track record, the starting point, I would say, is lapsed warnings elapsed. And there's an expectation when you set giving somebody a warning, and you set it for a certain period, and usually no more than 12 months, the expectation is it falls away from the record after 12 months and it's unfair of you to use it unless you've got good reason why it's appropriate.

Host: When it comes to communicating the decision then, you've come to the decision, you've been through the deliberations, talk us through what you say and how you say it?

Gearalt Fahy: It depends on whether you are going to say that at a ... whether you're going to reconvene the process and have a second hearing to relay your decision. It's not something that I would usually recommend or would see as even necessary. I think it's sufficient to confirm your decision in writing, and that would ordinarily be sufficient.

Paul Ball: There's no one size fits all about, disagree with that. There are some occasions where you would reconvene a meeting and tell a person face to face what your decision is. Going back to what we talked before about the adjournments, I've used the adjournment to once to reach a decision, to think about how you're going to say that decision, if you're gonna say it in writing or face to face, writing it out almost. There's no right or wrong way in terms of how much detail you give, either, although it won't probably surprise when I say that I put more in the decisions. And I'm doing that broadly to help the person making the decision and doing that more than anything else in the event that there is a tribunal claim and they're giving evidence. That letter will be a very useful aide memoir for them to remind them about why it was they reached that particular decision.

What you certainly don't want to say is, "It was my decision that you're guilty of gross misconduct, and the decision is that you're terminated." You want something in there that explains why that what allegations you decided are substantiated. And it also wants a little bit about why you believe that. Where we may differ, G is probably the level of detail you might go into, but there certainly you need to include that within there.

Gearalt Fahy: Absolutely, yeah.

Paul Ball: And I would also include why you've made a particular decision, why you've reached that particular decision in terms of penalty, I mean. So, I noted your previous occur, but the behaviour was so serious, this was serious, and I noted that you had a current warning on your file. Or I noted that throughout this, you've been quite contrite, you apologized straight away. Nevertheless, it was very serious. You know, putting something like that in there to explain why it was that you have reached a particular decision, particularly if you're making a decision where either it is a more serious or a more lenient decision than what might normally be the case for that employer because your decision can help sort of set a bit of a precedence for that employer going forward. And if you're making a sort of non-normal decision in that way, you want to be able to explain why that is so you do not sort of setting the bar too low or too high for future occurrences.

And that's also the case where you might have two or three people who are being accused of similar misconduct at the same time. You don't necessarily give everybody the same penalty, but you need to explain why that might be the case. And the final point, actually, is also you need to remember about the right to appeal and tell the individual there's a right to appeal against the decision and how they go about making the appeal and the timeframes for doing that.

Host: Okay, we've touched on documenting it, but I think it's worth just emphasizing it and going over it. How do we, or how should we be documenting this process?

Gearalt Fahy: It's really the conclusion of the disciplinary investigation. As Paul has said, at the very least, we will have a letter which confirms the outcome. And I would very much look at it really as working backwards from there. It's having the notes of the disciplinary meeting. It's ensuring that you have a copy of the letter or letters inviting the individual to the meeting. The investigation report itself is very important as is the documentary evidence or other evidence that was relied on as part of the investigation. So it's really trying to sweep everything up and ensuring that you have in one place. I can't think of too many cases where that actually happens and there's always something that's missed, but it's doing the best job that you can to wrap up the investigation.

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