When an employee is required to attend a disciplinary hearing, they must be given all the evidence against them in advance of it. But what if some evidence is accidentally missed out? Must you hold a rehearing?
The ACAS Code
The ACAS Code of Practice on Disciplinary and Grievance Procedures states that wherever an employee is subject to disciplinary proceedings they should receive written notification from their employer which contains sufficient information about the alleged misconduct and the possible outcomes. This enables the employee to prepare answers to the case against them. They must also be given a full opportunity to provide their answers (and any defence to the allegations) at the disciplinary hearing.
All relevant information
In advance of the disciplinary hearing the employee should be given: (1) full details of the specific allegations, not just general observations; and (2) copies of all documentary evidence and witness statements.
If you fail to do the above, the net result could be a procedurally unfair dismissal. Whilst you would never withhold information on purpose, mistakes can happen. So let’s suppose you’ve made a genuine error and information was missed out at the notification of disciplinary hearing stage. This oversight could come to light during the hearing or afterwards. In this situation would the employee be entitled to a fresh hearing, i.e. must you start again from the beginning? The answer to this question can be found in the Employment Appeal Tribunal’s (EAT) ruling in Biggin Hill Airport v Derwich 2015.
In 2013 the airport increased its number of supervisors. Derwich (D) didn’t apply for a role, but encouraged her then friend and colleague, King (K), to do so. When K was successful she unfriended D and other colleagues on Facebook. This didn’t go down too well and, during a disciplinary investigation, D later admitted to saving an image of a witch on K’s computer as a screensaver and making obscene gestures behind K’s back along with other colleagues. D also acknowledged the poor working atmosphere.
Evidence not disclosed
Five other employees were interviewed but their witness statements were not disclosed to D. She was eventually sacked for gross misconduct. Six days before her internal appeal D was given the missing witness statements but, ultimately, her appeal was rejected. She then claimed unfair dismissal where she argued that the employer’s failure to give her all the witness evidence was a fundamental flaw in its procedure.
The EAT has now rejected D’s argument finding that, by providing the missing statements well in advance of the internal appeal hearing, the employer had taken action to rectify its earlier mistake and D had sufficient time to prepare her appeal case. This ruling confirms that procedural errors can be put right at the internal appeal stage and, in the event of an accidental error; you aren’t obliged to hold a rehearing.
Follow our Disciplinary process and use the documents and letters on the MAD-HR toolkit to help follow a correct procedure and avoid errors.
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