In the context of employment law, one of the biggest risks to employers is the, often overlooked, two-pronged nature of unfair dismissal; a need for a valid reason for dismissal and procedural fairness. The requirement to ensure fair process ensures employees are given advance notice of performance or conduct issues and opportunity and support to either turn things around, where possible, or defend themselves. To avoid the risks of failing to meet these standards, employers need to plan and implement disciplinary procedures, which include an opportunity for the employee to hear the case, respond to it and present their side. This usually takes place in the context of a formal disciplinary hearing.
The use of a script at a disciplinary hearing therefore requires care and consideration; they may help ensure consistency and prevent accidental oversight or omission of any relevant matter in the moment, but misuse could also lead to a lack of authenticity, stilted or unnatural dialogue that prevents real communication and, in the worst case scenario, either pre-judgement or the appearance of the same. These could all lead to challenges to the fairness of the disciplinary process as a whole.
The Rationale behind Scripts
Scripts in any meeting have some fairly obvious advantages, particularly where it comes to maintaining organisation, structure and consistency.
Consistency in treatment ensures fairness between all employees, holding them to the same standard, as well as ensuring managers hearing a case are themselves clear in their instruction and responsibilities. This ensures the process is smoother, and clear expectations for all parties in advance is useful considering that the situation will often be new, and by nature uncomfortable, for those involved. The structure provided by a script can be useful in reducing combative feelings that may emerge when an employee feels personally attacked by allegations, and a manager can feel justified by having agreed points of discussion to cover.
Prompts can help ensure that the manager conducting the hearing remembers to raise all issues and evidence relevant to the disciplinary matter in question. This is critical when a failure to take something important into consideration in their decision could challenge the fairness of the process. Lord Denning, in a case brought to the Court of Appeal in the UK (Abernathy v Mott, Hay and Anderson), noted that ‘[an] employer can only rely on the reason in fact for which he dismissed the man, if the facts are sufficiently made known to the man’, and Lord Cairns’ agreed that ‘it could constitute a breach of procedural fairness [to not give] the worker the accurate charge’. A script for a hearing can ensure there is clear evidence both that all reasons behind the disciplinary have been put to the employee for their fair response and that the employer has clear evidence that the response has been considered if challenged later. A plan will also help ensure that key procedural and compliance steps are followed, such as confirming the employee is aware of their right to be accompanied. Though seemingly small, these matters and records can prove to be crucial evidence that the employer has been fair, unbiased and met established reasonable standards.
The Drawbacks of Scripts
However, an employer should be cautious of the risks of a script leading to, whether actual or perceived, lack of impartiality. If too strictly followed, employees may feel the process is predetermined and that can lead to a case that is flawed in its very nature, and open to later legal challenge. Employers need to keep in mind that the purpose of a disciplinary hearing, as mentioned, is to give the employee a fair hearing and opportunity to defend themselves against any allegations in front of an unbiased decision-maker. If a script is so rigid as to limit or prevent full and fair consideration of evidence and arguments, there is a risk that any subsequent dismissal could be rendered unfair on the procedural ground. Employers should note that the Employment Act, governing unfair dismissal in Gibraltar, explicitly puts the onus on them to show that they acted ‘reasonably in treating [the reason for dismissal] as sufficient reason for dismissing the employee’ – the disciplinary hearing is also the employer’s opportunity to demonstrate that they have sufficiently investigated the matter.
Quite apart from these legal implications of improper use of a script in a disciplinary hearing, there is also the effect that such inflexibility will have on the individuals in the room. Employees may feel frustrated by a lack of perceived empathy and due attention to the specifics of their case, which can in turn lead to a breakdown in trust and morale with management and their employer. For the managers involved too, this can limit their ability to respond dynamically to new information or adapt their communication-style to different circumstances, as may be helpful. The purpose of a disciplinary hearing, it is worth remembering, is not just a procedural exercise to mitigate legal risks, but an important opportunity to attempt to improve a situation, for both the employee and employer.
Finding the Balance
The key when using a script in a disciplinary hearing, then, is to find the balance between management going in blind and insufficiently prepared and following a uniform plan so mechanically as to be too rigid and potentially giving the perception of unfairness. It is advisable to use a script to create a structure for the hearing, ensuring all relevant points known in advance are raised and procedural matters are covered, to better enhance consistency, compliance and fairness to the employee. However, it should be stressed that a script should not be used to limit full explanation, clarification or investigation of further points that may arise and be relevant, not least for potential future legal defensibility. Open-ended questions are advisable, as well as active listening and further pursuit of any lines of interest before return to the general plan, rather than pre-defined back-and-forth closed questioning. Employers should view scripts as a supportive tool to help them ensure consistent treatment and full consideration of disciplinary matters prior to judgement and not as a tick-boxing exercise prior to a predetermined outcome.
