When facing a disciplinary hearing at work, one of the most pressing concerns for employees is whether they have the right to see the evidence against them. The short answer is yes, employers generally have to provide copies of the evidence they are relying on. This right is rooted in principles of fairness and transparency, which are fundamental to employment law and ACAS guidance.
ACAS Code
The right to access evidence in a disciplinary process is enshrined in the Advisory, Conciliation and Arbitration Service (ACAS) Code of Practice on Disciplinary and Grievance Procedures. This is a statutory code that employers must follow; failure to follow the code is likely to render a dismissal unfair and result in an uplift in compensation awarded to an employee by up to 25%.
Paragraph 9 of the code states that:
“If it is decided that there is a disciplinary case to answer, the employee should be notified of this in writing. This notification should contain sufficient information about the alleged misconduct or poor performance and its possible consequences to enable the employee to prepare to answer the case at a disciplinary meeting. It would normally be appropriate to provide copies of any written evidence, which may include any witness statements, with the notification”.
Importance of Transparency
Transparency in disciplinary procedures ensures that employees are treated fairly and justly. If an employer fails to provide evidence, it undermines the employee’s ability to defend themselves adequately. This can lead to decisions that are not only unjust but also open to challenge in an Employment Tribunal.
Providing evidence allows employees to:
- Understand the Accusations: Knowing the specifics of the allegations, including dates, times, and details, helps the employee understand what they are being accused of.
- Prepare a Defence: Access to evidence enables the employee to gather their own evidence, prepare counterarguments, and identify any inconsistencies or errors in the employer’s case.
- Seek Advice: Employees can seek legal or union advice with a clear understanding of the situation, leading to better representation and support.
Typical Evidence Provided
The types of evidence an employer might provide can include:
- Witness Statements: Accounts from colleagues or other relevant parties.
- Emails and Correspondence: Any written communication that relates to the case.
- Records and Logs: Attendance records, performance logs, or any other documentation relevant to the allegations.
- CCTV Footage: In cases where visual evidence is applicable.
- Policies and procedures: An employee will need a copy of any policy or procedure which they are accused of breaching.
Practical Steps for Employees
If you are facing a disciplinary hearing, here are steps you can take to ensure you receive the evidence:
- Request in Writing: Formally request copies of all evidence in writing. This creates a record of your request.
- Refer to Policies: Point out any company policies or legal guidelines that support your right to access the evidence.
- Seek Representation: If you are a member of a union, involve your union representative who can advocate on your behalf. If you have a disability you may be permitted to have a family member or support worker attend with you.
Potential Challenges
While employees have the right to access evidence, there can be challenges. Employers might be reluctant to share certain types of evidence due to confidentiality concerns, especially if it involves other employees. In such cases, redacted versions of documents might be provided to protect sensitive information.
Conclusion
The right to access evidence in disciplinary proceedings is a critical aspect of ensuring fairness in the workplace. Employers are generally obligated to provide this evidence, and failure to do so can lead to claims of unfair dismissal. Employees should be proactive in requesting evidence and seeking appropriate advice to ensure they can defend themselves effectively. Understanding your rights and the procedural requirements can help safeguard your employment and ensure justice is upheld in the workplace.
If you are unsure whether your employer is following proper disciplinary procedure and need advice, consider contacting us via our Facebook Groups or filling in our contact form. See Contact Us for details.
