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Introduction to this document

Letter excluding employee from disciplinary hearing

When faced with disciplinary action, not all employees act politely. Some have been known to become verbally or physically abusive; others have intimidated their employers and other witnesses. As this is unacceptable behaviour you can ban them from the proceedings. Use our letter to handle this difficult situation.

Difficult situation

Even with the nicest of employees, disciplinary proceedings can be problematic. But where they react to them by becoming verbally abusive - either towards you or other members of your staff - or there's a risk of physical violence, they are more difficult to handle. As an employer, you owe a duty of care to all your employees; this must be balanced against their right to a fair hearing.

Thankfully, recent tribunal case law has confirmed that where an employee's presence is getting in the way of any disciplinary proceedings, or they are intimidating witnesses, they can be lawfully excluded from the process. However, it's important to remember that this type of action will only be justified if it is "proportionate" to the problem you are facing. In other words, there must be an actual occurrence, or significant risk, of physical violence and/or verbal abuse or intimidation. The fact it is a mere possibility isn't enough to ban them from the proceedings.

Keeping them out

When faced with this type of situation, you should write to the employee who is the subject of the disciplinary proceedings as soon as possible, pointing out why you are excluding them from the hearing. Refer to specific events that could happen, or have happened, e.g. "On X day you made verbal threats towards Y". At the same time, you should inform them that their companion, i.e. workplace colleague, or union representative, is entitled to stay throughout the entire proceedings. You can use our Letter Excluding Employee from Disciplinary Hearing for this purpose.

If you decide to exclude an employee from a disciplinary hearing, they still have the absolute right to see copies of all evidence used against them, e.g. transcripts of witness statements and any documentation produced. This allows them to prepare their defence. Plus, they must be given the opportunity to challenge it. Any refusal on your part to allow them access to this information, or to question it, will be viewed negatively by the tribunal; it's almost certain that this would result in a finding of unfair dismissal, i.e. an unreasonable process was used.