If a situation arises where you consider that you may need to commence a disciplinary process with an employee, then it is important that you follow a fair process.
The main risk of not following a fair process is that if the employee is dismissed, they could pursue a claim for unfair dismissal (assuming they have 2 years continuous employment). Even where you consider the reason for the dismissal is justified, you open yourself up to the risk that an Employment Tribunal may consider the procedure was unfair, and therefore, the employee was unfairly dismissed.
Of course, if this happens you could argue that the employee would have been dismissed if a fair process had been followed, which if successful would limit the amount of compensation awarded. However, you would still have a judgement against you confirming the employee was unfairly dismissed, which could cause reputational damage.
Even in situations where the employee is not dismissed, not following a fair process could cause problems. For instance, the employee being disciplined may raise a formal grievance about the process and depending on how the grievance is then dealt with may resign, which could give rise to claims for constructive unfair dismissal.
Given the risk, I recommend that you follow a fair process and I have set out below how best to conduct each stage.
Once an allegation or an issue arises, you need to decide whether there is sufficient evidence to proceed straight to a disciplinary hearing, or whether you need to undertake further investigation. In all but the most straightforward of cases, further investigation will be required.
At the same time as deciding about whether or not you need to undertake further investigation, you should consider whether the allegation is sufficiently serious to warrant the employee being suspended. You can also suspend an employee to enable you to undertake the investigation, if you consider the process may be hindered by them remaining at work.
Any suspension should be on full pay, as suspension should not be used as a punishment.
If you decide to suspend the employee, you should ensure that you confirm to the employee in writing the following:
- The reasons for the suspension.
- An indication of the likely length of the suspension.
- Confirmation that they will be paid full pay and continue to receive their normal benefits for the duration of their suspension.
- Explain what their rights and obligations are during the suspension period – i.e. that they are still employed and therefore the contractual and implied duties of both parties will continue for the duration including their duty of fidelity and their duty of confidentiality.
- Confirm their employment will continue and that you are not to report to work.
- Specify who they are/are not allowed to have contact with.
- Notify who their point of contact will be during the suspension.
The suspension should be no longer than is necessary to conduct the investigation, and I would recommend that if the suspension lasts more than a week, you regularly contact the employee to enquire how they are and inform them why the process is taking longer than expected.
The worst thing you can do, in my view, is not keep regular contact with the employee.
3. Investigation process
You must decide who is the best person to conduct the investigation process, this could be the employee’s line manager. However, if the incident involved their line manager, then I would recommend you have another impartial manager conduct the investigation.
During the investigation process, you should request the employee attends a meeting to discuss the allegation and obtain their view. Whilst an employee has no legal right to be accompanied at this meeting, you may wish to consider whether you allow them to bring a companion as a reasonable adjustment.
If during this meeting, the employee makes you aware that other colleagues are aware of the incident you should follow up on this and interview those other individuals and obtain witness statements.
You should also take minutes of meetings as a record of what has been discussed, this is particularly important in the event that an employee does decide to pursue a claim. Where possible, you should seek the employee’s agreement that the minutes are an accurate reflection of what was discussed. Given, the issues which can arise in respect of the minutes being disputed, you may want to consider whether it is better to record the meetings, with everyone’s consent of course.
Again, the investigation should be conducted within a reasonable time frame and in line with either your own disciplinary procedure or the ACAS Code of Practice where no disciplinary procedure is in place.
Once the investigation is concluded a report should be produced setting out the findings. You then need to decide if further action is required i.e. does a disciplinary hearing need to be arranged or not.
In the event that the investigating officer decides there is no case to answer, the employee should be informed of the outcome immediately and provided with a copy of the investigation report.
In the event that you decide a disciplinary hearing is required, you must notify the employee as soon as possible inviting them to a hearing and provide them with a copy of the investigation report, any evidence gathered, and any witness statements obtained during the investigation.
It is really important that you make the employee aware of the following within the invite letter:
- The allegations against them and why they are considered serious.
- The possible sanctions which could be imposed.
I would also ensure that a copy of your disciplinary procedure or a link to the ACAS Code of Practice is provided to the employee.
The employee should be given at least two days to prepare for the disciplinary hearing, and if there is a lot of evidence to consider then they should be given longer.
4. Disciplinary Hearing
The employee has a legal right to be accompanied to the hearing by a colleague or trade union representative. However, you may wish to consider allowing the employee to be accompanied by a friend or relative as a reasonable adjustment, depending on the situation.
Inform the employee that the hearing is their opportunity to provide their view on matters and no decision has been made about the outcome yet.
Ensure that you listen to the employee and if any additional information comes to light, follow up on this after the hearing.
5. The Decision
If you intend to make your decision on the outcome on the same day as the hearing, then you should adjourn the hearing while you consider matters. You can then reconvene the hearing and inform the employee of the outcome verbally and follow up in writing.
If you need more time to consider matters or need to investigate matters further, then you should confirm this to the employee and inform them of the outcome within 5 working days (or whatever timescale is provided within your disciplinary procedure).
You need to inform the employee of their right to appeal the outcome.
The appeal should be dealt with by or someone who has not previously been involved in the process, preferably someone more senior in the organisation.
The steps above should then be repeated. However, you may not need to conduct further investigation depending on the reasons for the appeal, it may be sufficient to merely reconsider the evidence and outcome.
Worried about a disciplinary process?
We can assist with every step of the process making sure that you follow the legal steps but also ensuring you feel comfortable dealing with the process.
If you do not have a disciplinary process or procedure in place and would like help, then we can prepare this for you.
Please do not hesitate to contact us on 01983 897003 for a no obligation discussion.