Principles of a disciplinary process
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So let’s discuss the fundamentals. This applies to both misconduct and performance (see here for the diference), and will vary from country to country (see here for why it may be different where you are). I will be sticking to broad principles here, so while the rules may be different, the ideas underneath are likely to be similar enough.
Your boss has a problem with you, and wants to hold you to account for something, and that may mean the end of your employment now, or later, if this doesn’t change. They can do this, and it’s fundamental to modern capitalism that employers need to be able to end dysfunctional employment contracts, but most countries recognize this can be very one-sided, so set rules in place about how to do it fairly.
Right to prepared
The employee needs to know what the problem is, and what the facts are. This is discussed more here but if the employee doesn’t know what the problem, and or what the details are before the meeting, so they can prepare a meaningful defence, then that’s an ambush, and that’s unfair.
Must get all the facts
The employer has the right to conduct and control the fact gathering. The employee can bring their own information, but they have no capacity to dig into the company as and where they choose. This gives the employer great power, that must be used fairly. If the employer is selective in gathering the information, its going to be much easier to build a case to their preferences. Anyone can prove anything if they are sufficiently selective with the facts. So the employer needs to be full, fair and thorough, identify the relevant information that will be considered, and present it to the employee for comment, prior to them being weighed and judged. See the ignored trail of evidence section here.
Right to speak
The employee has the right to know, and speak to all facts that will be weighed against them. Facts that will be considered cannot be withheld, nor can they be delayed as they are presented see here. The employee has the right to speak to these, as they choose; whether to content, agree, dispute, deny or decline to comment.
Right to be heard
There are three parts to this, all subtly different. Firstly, the employer must pause to hear; the employer must give the employee time and space to speak as they choose- they cannot be unreasonably rushed, spoken over, have words put their mouth, or in any way leant on or influenced in their explanation.
Secondly the employer must have an open mind before deciding. The employer must listen and genuinely consider what explanation the employee is giving. Because this is an inner working of the employer’s mind, this can be hard to tell, but there can be signs that the decision was already made (see here).
Thirdly the employee must be heard by the decision maker directly. This can get a problem (or it can get a little murky) if either the person holding the meeting isn’t the decision maker or needs to get approval from a senior manager, or the matter is dealt with in an investigation that reaches a definitive conclusion.
Right to be supported
An employee has the right to help. This is discussed more here but the employee should not go into the meeting without the option to bring someone to assist them. This doesn’t give them the right to silence (unless your laws do), nor does it mean you have to bring one (see here for more), but you need the option- these meeting can be intense, confusing and overwhelming. We all need a little help from our friends.
No right to refuse
This non-right points out why all the other are important. An employer has no right to refuse a resignation (see here), and the employee cannot refuse to be dismissed, or be given a warning. It’s the right of the employer to act this way unilaterally. The courts will decide the decision is unfair, and even reverse it, but the employee doesn’t get a vote, doesn’t get a choice in the final decision. That the employee has no right to refuse the warning underpins why they get the other rights.
