Can you only hold a disciplinary hearing during an employee's normal working hours?

No, but in most cases, it is sensible to do so.

There is no rule that says you are limited to holding disciplinary or grievance hearings during an employee's normal working hours. The Acas Code of Practice on Disciplinary and Grievance Procedures recommends that meetings should be held “without reasonable delay” and that both parties “should make every effort to attend the meeting”.

Let’s say you want to hold a disciplinary meeting for an employee who works a twilight shift from 7pm to 11pm. Unless the manager holding the meeting (and HR if they are assisting) is available in the evening, you may have to schedule it outside the employee's normal working hours. However, you must act reasonably. For example, if you know that the employee has other commitments during the morning, it would be unreasonable to schedule the hearing then, but it might be reasonable to schedule it in the afternoon or very early in the evening.

If the employee says they cannot attend the meeting, you should consider their reasons and try to reschedule it at a more convenient time.

What is reasonable will vary from case to case. A tribunal will expect you to try to accommodate a request for an alternative date and time. This is because employees have the right to provide their version of events and answer any allegations made against them. If you go ahead and make a decision about the employee in their absence, they may be able to challenge the fairness of this at a tribunal.

That’s not to say you have to allow an employee to keep postponing a hearing (which can happen if they don’t want to face up to the issue). If you have tried to accommodate their request, you can go ahead in their absence but only if you are confident that you have acted reasonably. A tribunal will usually expect you to make at least a couple of attempts to schedule the hearing before reaching your decision. If you have reached this point, you should give the employee the opportunity to respond in some other way such as in writing, or over the telephone so that you can consider their views.

You should pay the employee for any time they spend at the hearing – even if it takes place outside of their contractual working hours.

Remember: an employee can also ask you to reschedule the meeting if their chosen companion (either a colleague or trade union official) cannot attend. This might happen if, for example, their chosen colleague works a different shift pattern to their own. You can’t reject the employee’s choice of companion but can insist that the rescheduled hearing takes place within five days of the original date.

Need further advice?

Glenn Hayes is an expert on advising organisations about disciplinary and grievance hearings.  Please contact him by email glenn.hayes@irwinmitchell.com or by telephone on 44 (0)113 218 6484.

Find out more about Glenn here.