We are often asked how to beat disciplinary hearings.
If you are going through a disciplinary at work, it can be a stressful process.
Even if you feel like you have not done anything wrong (or something minor) the odds feel stacked against you.
It is clearly much easier to beat disciplinary hearings if you are not guilty of the alleged misconduct.
However, what we set out below are some suggested approaches to help you navigate the process and hopefully avoid disciplinary action being taken against you.
How To Beat Disciplinary Hearings – Main Options
The two main options to beat disciplinary hearings are:
(1) You participate fully in the process (with our guidance below):
(2) You avoid the process being concluded, either by reaching an agreement with your employer or by resigning (as explained below, we favor the former (reaching an agreement), as resigning can have drawbacks and is often a last resort).
We cover these options in more detail below.
Which Route Should You Take To Beat The Disciplinary Hearing
At the outset, it is important to consider your main objective.
For example, if you are unhappy at work, and have been for a while, you may decide your best option is to try and leave your employment, hopefully with some financial compensation. This is easier said than done, so we urge you to take professional advice before embarking on this step. However, it is important to have the goal in mind at the outset.
On the other hand, if you love your job, and want to keep it (and the disciplinary is one big misunderstanding) then you are likely to want to go through the process and convince your employer that you have done nothing wrong.
ROUTE 1 – Going Through The Disciplinary Process
If you decide you want to stay employed, then you will have to go through the disciplinary process, which usually starts with an investigation.
It is important to note, that not all investigations lead to disciplinary hearings, and some disciplinary hearings could have been avoided if the employee participated properly in the process.
What we often see, is employees that believe they have done nothing wrong, and rather than focus on getting that across to their employer, they become extremely defensive. This results in them being disruptive during the process (or avoiding it altogether by going on sick leave). They are so annoyed at being part of the disciplinary process they forget to explain why they have done nothing wrong.
An employer is entitled to investigate alleged misconduct in the workplace and will often have a duty to do so. If an employee is asked to attend a disciplinary and they refuse to participate (or goes on sick leave) do you think this infers innocence or guilt? Sadly, it is often the latter, and refusing to participate may be a separate disciplinary matter of its own. Although to be clear, we are not saying to not go on sick leave if you are genuinely unwell (obviously then you should take the time you need to get better).
Compare this to the employee that goes through the process openly and professionally, does not pick holes in every exchange or flags minor points that have made no difference, and comes to meetings with a similar attitude with evidence collated and a polite explanation as to why they have done nothing wrong.
Who do you think is more likely to avoid dismissal and beat the disciplinary hearing?
If the process is “pre-determined” and dismissal is “inevitable” (which is not nearly as common as people think) then we still recommend this approach, because you will be reflected much more positively in the documents, which may be important at a later stage.
Going Through The Disciplinary Process – Continued
If you have decided to go through the disciplinary process, then here are some other key points:
- Read the documents sent to you carefully and make sure you understand the allegations against you.
- Obtain a copy of the disciplinary process and read that carefully too.
- If you have relevant evidence, collate it together and place it in date order, then make copies. You can then share it easily and avoid sending/forwarding lots of different emails.
- Understand your right to be accompanied at different meetings and go to each meeting prepared.
- We cover how to act in formal meetings HERE. Please heed the advice about going into the process with an “open mind” which makes the same point covered above in relation to the importance of fully participating in the process.
The Disciplinary Hearing
In any disciplinary process, there is likely to be a disciplinary hearing, which is essentially a meeting, where your employer will decide on what action to take.
If you deny the allegations, this must be your main focus.
You should attend the meeting prepared to show evidence and explain why you are not guilty.
If you accept some of the allegations but can explain or mitigate your conduct, make sure that is properly addressed too.
What we often see is employees focus on other points and instead make allegations of their own, to the point where their explanation as to why they are not guilty of the misconduct is not put forward or lost in all the noise.
This is a mistake and can easily be twisted around. If you fail to address the allegations head-on, there is an inference you were guilty of the allegations or that your explanation is simply not understood. You can address other points, but they should be secondary and careful thought should be applied before raising them. For example, if your main objective is to beat the disciplinary hearing and stay employed, consider if raising these points will make this more or less likely. Often the answer is less likely, in which case, it may be best to leave them out.
ROUTE 2 – Avoiding The Process
Another way to beat disciplinary hearings is for them not to take place.
Here, the main goal is to avoid a disciplinary sanction, principally dismissal.
However, we are not suggesting you simply avoid the process, by resigning or failing to attend the meetings.
As covered above, not participating in the process often infers you are deliberately not facing the music because you are guilty of the allegations.
The same can be said if you simply resigned, as the employer may argue that you “jumped before you were pushed.”
What we are suggesting here is that you reach an agreement with your employer and negotiate an exit.
Negotiating an Exit
As set out above, you should start with your end objective in mind.
If you would prefer to leave your employment, then a pending disciplinary process is often an opportunity for the parties to reach an agreement. Often, employers do not want to conclude a disciplinary process and dismiss the employee, because it drains time and resources and they fear making errors that may result in claims against the company.
Therefore, if you would prefer to leave the business, then approaching your employer (most likely on a “without prejudice basis”) and trying to agree on an exit may be a solution and another way to avoid dismissal / beat the disciplinary hearing.
We appreciate negotiating your exit is not easy, which is why we suggest you take professional advice before taking this approach.
Resigning (Generally, a Last Resort)
You may feel the disciplinary process or your treatment to date is so unfair that you have no other option than to resign. However, our general rule is to make a resignation a last resort and after you have tried other avenues first, because simply resigning leaves you unemployed (so without an income), you run the risk of it looking like you resigned to avoid facing the allegations (because you were guilty) and you lose your main leverage to reach an agreement with your employer (the only recourse now may be a Tribunal claim, which can take a long time).
Compare the above outcome, with you instead, negotiating an exit with your employer, where you leave the business on agreed terms (to include securing a reference) and some compensation (giving financial security whilst you look for a new job).
Conclusion
We hope the above gives you some guidance on how to beat disciplinary hearings, which is often another way of saying to avoid being dismissed.
We suggest you start by carefully deciding on what you most want to achieve, and let that guide which route to take.
If you want to stay employed, then fully participating in the process (with an open-mind) is likely to improve your chances of avoiding dismissal and the process going in your favor.
If you would prefer to leave, then being proactive and trying to reach an agreement with your employer can often result in a better outcome than simply resigning.
For both scenarios, a relevant consideration will be if you have been employed for more or less than 2-years.
This is because you are required to have at least 2-years of continuous service as an employee to be eligible to claim unfair dismissal or constructive unfair dismissal. We cover this point in more detail HERE.
Disclaimer:
This blog is for information purposes only. Nothing should be relied upon as a substitute for legal advice and nothing written should be construed as legal advice or perceived as creating a lawyer-client relationship.