Handling situations when employees have committed acts of misconduct, or are suspected of having done so, are one of the most common (and often the most difficult) issues that employers are faced with.
Employees with over two years’ service have the right not to be unfairly dismissed. Correctly handling the disciplinary procedure can mean the difference between a fair and an unfair dismissal.
As a starting point, having a well drafted disciplinary policy in place and applying it consistently can ensure that the correct procedures are followed. Policies will also usually set out the standards which are required of staff, meaning that employers can identify when employees have fallen below the standard that is expected of them and act accordingly.
A fair disciplinary procedure should involve three stages:
1. an appropriate investigation into the allegation
2. a disciplinary hearing at which the employee has the right to be accompanied
3. giving the employee a right of appeal.
When is dismissal fair?
In determining whether a dismissal is fair, there are two main elements which an Employment Tribunal must be satisfied are present:
- the dismissal was for a potentially fair reason under Section 96 of the Employment Rights Act, for example, misconduct; or
- the dismissal was substantively fair, meaning the employer has gone through a fair procedure in the circumstances before dismissing the employee.
When advising on disciplinary issues, there are common pitfalls which employers can easily avoid by having robust policies and procedures in place.
The investigation
A disciplinary process will usually start with an investigation to gather evidence into the alleged act of misconduct. Normally the employer will appoint a manager who has not previously been involved in the matter, to investigate which will involve collating documentary evidence and speaking to any relevant witnesses, including the employee who is suspected of wrongdoing. The investigator should approach the investigation with an open mind and look for evidence that shows the suspect did not commit the offence as well as evidence that shows they did.
The invitation letter
An employer should hold a disciplinary meeting without undue delay whilst allowing the employee reasonable time to prepare their case.
The invitation to the disciplinary should provide sufficient notice of the meeting (usually 3 – 5 days) in order to allow the employee a chance to consider the allegations against them, prepare their response and arrange for a companion to accompany them at the meeting.
The disciplinary invitation must also warn the employee of the potential outcome of the hearing, whether this be a warning or dismissal. It is always open to the employer to impose a lesser sanction if considered appropriate based on what is said at the meeting.
Workers have the statutory right to be accompanied at meetings by a trade union official (or representative who is certified to accompany a worker) or a colleague where the meeting might result in a formal warning, some other disciplinary action or at an appeal hearing.
The companion should be allowed to address the hearing to put forward and sum up the worker’s case, respond on behalf of the worker to any views expressed at the meeting and confer with the worker during the hearing. The companion does not, however, have the right to answer questions on the worker’s behalf, address the hearing if the worker does not wish it or prevent the employer from explaining their case. The Disciplinary Officer should be mindful of the companion’s role and not let them set the agenda for the meeting or start speaking to the exclusion of the employee.
The disciplinary hearing
At the hearing, a note-taker should be present to take accurate minutes of the meeting. The minutes should reflect the actual length of the meeting and what is discussed. Whilst the minutes don’t need to be verbatim, the note taker should not be overly selective in what they write down either. A few lines for a hearing which took over an hour will not be sufficient.
Most mobile phones now have the capability to make voice recordings and the parties might agree to record the meeting and prepare a transcript afterwards. Employers should also proceed on the basis that the employee may be covertly recording the meeting and not say anything that they would not want to hear repeated in front of a Tribunal judge.
Whilst many employers like to jot down key questions they want to ask, sticking to a script often means that the Disciplinary Officer is not actively listening to the employee’s responses or representations. Any questions which are prepared in advance should serve only as a guide for the key points to be covered and should not exclude the exploration of further issues which may be relevant. If any evidence is being used, the Disciplinary Officer should remember to refer to this when relevant and give the employee a chance to respond.
If the employee says something that the Disciplinary Officer does not agree with or does not understand they can and should challenge the employee or ask for further details. If the explanation given by the employee is contradicted by the evidence they should be told this and asked to explain the contradiction.
Communicating the decision
After the hearing, the Disciplinary Officer should take time to consider all of the evidence and any representations made by the employee. Sufficient time should be factored in for this, in order to allow consideration of all of the facts and circumstances of the case. In some cases, this might mean following up with a decision in writing in the days following the hearing. In more straightforward cases, a few hours might allow sufficient time for consideration.
It is good practice to detail in the outcome letter any mitigation that was considered when deciding on the appropriate sanction as this will demonstrate that all of the relevant information was taken into account.
Handling each stage of the disciplinary procedure with care and attention will minimise the risk of a successful unfair dismissal claim against the employer. If any defects in the procedure are identified, it might be possible to rectify these at the appeal stage. If you are an employer with any specific queries, please contact our employment team for further advice.
