The following procedure (which is based on advice set out during the Clark v CAA tribunal case by the Employment Appeals Tribunal - see APPEAL) should be used as a base to ensure that the process by which a hearing is conducted is fair - and seen to be fair.

1. Explain purpose of meeting.

2. Appoint person to take notes.

3. Identify those present.

4. Ensure employee has representation (if required).

5. Inform employee of allegations - although ideally these should have been advised previously. Springing allegations on an employee and expecting them to respond without notice is hardly likely to be viewed as fair.

6. Indicate and review evidence underlying allegations.

7. Allow employee and/or their representative to ask questions or to make statements.

8. Ask employee if witnesses are to be called.

9. Allow both sides to make and explain their cases.

10. Listen to arguments from both sides.

11. Consider any pleas in mitigation.

12. Consider severity of complaint and compare with length of service and previous performance of employee.

13. Request clarification of any points.

14. Invite any further statements.

15. Consider arguments.

16. Indicate in the event of the employee being found culpable, what means are available should they not agree with the finding. Any appeal to be heard will need to follow a similar procedure as is set out above.

17. Review circumstances and sanctions applied where there were any similar offences.

18. Make decision and communicate it with details of how appeal should be lodged.


Physical Surroundings
A quiet room or place where the meeting will not suffer from interruptions (including phone-calls) should be used. The room should not be capable of being overlooked (e.g. because of uncurtained glass walls).

Illness During Discussion
Whilst the onset of illness during a disciplinary procedure can be faked, it is unwise to make this assumption without good grounds. It will be safer to suspend action and consideration pending a return to health. Any attempted conclusion reached during such an illness might be held to have been arrived at 'under duress'. However, if there seems to be evidence of deliberate absence to thwart the holding of the hearing, it may be legitimate, after notice to this effect, to hold the hearing even though the employee is absent.

Adjournment
Legally an employee has a right (once only) to adjourn the proceedings for up to 5 days (this process could be used when there is illness).

Employee Wishing to Leave During Process
If the hearing is taking place in the employee's working hours since employees are required to comply with management's reasonable instructions, a request to cease the process can normally be refused. However, should an employee refuse to continue and try to leave the meeting no attempt should be made to restrain him or her. It may be appropriate to suspend the employee (with pay) and request his/her attendance at another time (say the next working day) thus allowing any temper to cool.

Representation
The Employment Relations Act 1999 gave a right to be accompanied 'where [the hearing] could result in the employer administering a formal warning to a worker or taking some other action in respect of him or her'. In this regard, the letter of the law might usefully be ignored and an invite to the employee to have 'someone to accompany you' could be given on all occasions. A note evidencing this offer (and the decision) should be included in any transcript of proceedings. The Employment Relations Act also grants the right to be accompanied at a grievance hearing which 'concerns the performance of a duty by the employer to a worker' - although again it may be safer (and easier to administer) if such representation is allowed on all occasions. The right is often colloquially referred to as 'being represented' (and under any trade UNION agreement might be so granted), the legal right is to be accompanied - with some restrictions placed on the actions of the person accompanying the employee. Again, however, it may be better to ignore the legal restrictions and allow freedom of actions. Under the Employment Relations Bill 2003 the role of the person accompanying an employee at disciplinary or grievance hearings is to be clarified.

Hearing
Regardless of the severity of the offence or potential sanction, a meeting to discuss the 'offence' must be conducted in accordance with the rules of natural justice. Hearings should be held at a mutually convenient time, in the employee's working hours and should ideally be conducted by an impartial 'adjudicator' listening to both sides of the argument, and to any witnesses, giving both parties every opportunity to ask questions of the other, and of any witnesses, and to make any points in support or rebuttal.

Once both parties have finished, the adjudicator will need to come to a decision. This does not necessarily need to be announced immediately - indeed, it may be preferable with complicated complaints to allow a time for reflection, and/or possible further independent investigation by the adjudicator. If the complaint is serious, it may be preferable to suspend the employee on full pay pending the decision, which, irrespective of the seriousness, should be made known as swiftly as possible.

Record
Full notes of the hearing should be made by an independent person with transcripts made available to both employee and supervisor/manager, and an opportunity for anyone disagreeing with the transcript to challenge, and, with the agreement of the adjudicator and the other party, to correct the record. In the event of disagreement, the adjudicator will need to decide the correct content.

Increasingly, tape recording is being used as a means of recording the proceedings. Ideally, two tape recordings should be made with the employee offered a choice of the tapes at the conclusion. This should avoid any later claim of tampering with the record.

Appeal
Since the employee may not agree with the correctness of the hearing, or with its findings, either a specially designed APPEAL procedure or the GRIEVANCE procedure can be used. This should allow recourse to independent parties for a review of the facts.

Sanctions: Warnings and Penalties
Assuming the case was proved, the adjudicator needs not only to record this, but also to decide on and initiate, appropriate sanctions. This will normally take the form of a written warning, usually requiring the employee to desist from unacceptable behaviour, or to comply with rules and procedures previously transgressed. Most warnings will be of the 'don't do it again' type - but should the warning emanate from a hearing held as a result of a further complaint concerning behaviour, already the subject of a complaint and warning, a second warning may be required which may (depending on the internal rules and circumstances) be regarded as a final warning. Warnings may specify a requirement of action (or inaction) within a certain time - for example, a persistent latecomer (already in receipt of a first warning, which seems to have had no effect) might be given a final warning specifying that if he is late a further twice in the next month, he will be dismissed. Any penalties specified do, however, need to be commensurate with the offence.

Time Limits
Once time limits (usually six months) set out in the warning have expired, the employee can apply for the warning record - on that transgression - to be regarded as wiped 'clean'. Once a warning has expired either automatically or as a result of such an application, unless it is specified in the contract, it must be destroyed and cannot be used in any future disciplinary proceedings.

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