How should employers handle a situation with misconduct at work?
When an employer has been made aware of a potential misconduct issue, it is common to consider that an immediate invite to a disciplinary hearing and/or immediate dismissal, is the most appropriate action to take.
However, if you dismiss an employee who has been employed for two years or more, without following a fair process, the employee may be able to pursue a claim for unfair dismissal.
Even where an employee has less than two years’ service, it is good practice to follow a process in case any issues arise.
All allegations should be investigated to some degree before action is taken, ideally this would be conducted by the employee’s line manager, but this is not always an option, as the employee may raise that the line manager will not conduct the investigation impartially. This issue usually arises where there has been a breakdown in the working relationship.
Once you have decided who will conduct the investigation, you need to establish whether any other employees need to be interviewed as part of the investigation (this will depend on the allegations and will not always be required). If other employees do need to be interviewed, you need to obtain statements from them, as these will need to be provided to the individual under investigation, in the event disciplinary action is required.
It is important not to ask leading questions during the investigation meetings, and where possible not disclose the individual who is being investigated, unless you have a legitimate reason to or it is impossible to investigate without them knowing who it is about.
You need to decide whether or not the allegations are serious enough to suspend the employee.
Suspension should only be used where you consider there is a legitimate and serious risk of the employee remaining at work and/or you consider the investigation would be impeded by the employee remaining at work.
Any suspension should be on full pay, and the employee should be informed of the suspension and any conditions in writing.
It is best practice to conduct the investigation, without undue delay, so that any period of suspension is for no longer than required.
Invite to Disciplinary Hearing
Once the investigation has been concluded, a decision needs to be made regarding, what, if any, action needs to be taken.
If disciplinary action is required, you should invite the employee to a disciplinary hearing and provide them with copies of any of the evidence obtained as part of the investigation and your disciplinary policy, this is to enable them to fully respond to the allegations. An employee should be given at least 2 days’ notice of the hearing (or the period set out within your disciplinary policy if longer). This is to ensure that they have sufficient time to prepare.
The invitation should set out the following:
- Who will be conducting the hearing.
- When and where the hearing will take place.
- Who else will be attending the hearing and their role.
- What the allegations against the employee are.
- The right to be accompanied.
- The possible outcomes following the disciplinary hearing.
Please note, the person who conducts the disciplinary hearing should ideally have had no involvement in the investigation, to enable them to view matters impartially.
Right to be Accompanied
There is a legal requirement to allow the employee to be accompanied by a colleague or Trade Union representative. However, we often have requests for employees to be accompanied by a friend or relative. I would always recommend such a request is considered and permitted where possible. This shows your wiliness to go above and beyond what is required and will look favourable if the employee attempts to pursue a claim in the Employment Tribunal.
It is important that minutes of the meeting are taken, and to avoid any dispute over what was discussed you may decide to record the hearing. If you decide to do this, it is best to inform the employee within the disciplinary invite letter, this will provide them with the opportunity to raise any objection before the hearing takes place.
It is important that the person conducting the disciplinary hearing keeps an open mind and is willing to listen to what the employee has to say in response to the allegations. It may be that in light of the employee’s response, further investigation is required. If this is the case, adjourn the hearing and conduct the additional investigation. Once this is completed, you need to invite the employee to another hearing, following the steps set out above.
Once the disciplinary hearing has concluded, you need to determine what, if any, action will be taken. If the decision is taken to dismiss an employee, you need to decide whether or not to pay them notice. Where the employee is dismissed for gross misconduct, there is no requirement to pay notice. However, this can give rise to a wrongful dismissal claim which is a breach of contract claim in respect of the notice period. In the circumstances, you may wish to consider taking a commercial approach, and paying the employee their notice period to avoid the risk of this claim.
The employee should be informed of the outcome in writing (the timeframe for this will be set out within your disciplinary procedure). The employee should also be given the right to appeal.
If the employee chooses to appeal the decision, then you will need to appoint another manager, who has not previously been involved in the matter, to conduct this.
If the employee does not bring any new matters to light, then the appeal manager can simply review the process conducted and invite the employee to an appeal meeting.
The appeal manager can decide to uphold the original decision or revoke the original decision if they consider it appropriate.
Again, the outcome of the appeal should be confirmed to the employee is writing.