Part three of our blog series on managing the disciplinary process. What can happen when you appoint the wrong person as Chair of an investigation, disciplinary and/or appeal?

There’s nothing we hate more than being the bearers of bad news, especially when it comes to telling employers who’ve dismissed blatantly guilty employees that they’re exposed to potentially valid unfair dismissal claims. However, we often are and so it makes sense for us to set out the main reasons why in the hope that we don’t have to hold the receiver away from our ears for fear of deafness as much in future. We’ll do this in a series of blog posts over the course of the next couple of weeks, covering a different reason in each post. Of course, if you’re an employer and would like to discuss any of the issues touched on in these posts, please contact one of our HR consultants in confidence and without delay for some initial advice free of charge and without obligation.

Next up is putting the wrong the person in the hot seat at investigation, disciplinary and/or appeal stage. In this regard, it makes sense to refer to the requirements of the Acas Code of Practice on Disciplinary and Grievance Procedures and the corresponding guidance booklet, which state…

 

  • In misconduct cases, where practicable, different people should carry out the investigation and disciplinary hearing.  
  • Wherever possible provide for the appeal to be heard by someone senior in authority to the person who took the disciplinary decision and, if possible, someone who was not involved in the original meeting or decision.
  • In small organisations, even if there is no more senior manager available, another manager should, if possible, hear the appeal.

 

So the general rule of thumb here is that each successive decision-maker in a disciplinary process should be equivalent, but preferably greater, seniority than the last. That said, a degree of leniency has been established through case law. In Adeshina v St George’s University Hospitals NHS Foundation Trust, the EAT determined that individual circumstances were key when addressing the question of whether the choice of decision-maker is appropriate. In that case, a decision-maker on appeal was more junior than the disciplining officer, but the fact that he was part of a panel meant it wasn’t fatal to the fairness of the dismissal

It’s also important to bear in mind that regardless of the stage in the procedure, decision-making responsibility should be assigned to someone unconnected to the alleged misconduct. If the disciplining officer was also a witness, they’re already involved in the case in a different capacity and so their independence and impartiality could be compromised.

Finally, there have been a number of cases down the years in which tribunals have considered whether it’s appropriate for employers to use external support providers such as ourselves. This tends to happen (1) in small companies that lack staff of sufficient seniority to undertake decision-making roles, or (2) where the disciplinary allegations at hand are complex and/or emotive. The general view taken by tribunals is that “going external” in this regard is acceptable as long as it’s made clear who the ultimate decision rests with and that a fair process is followed in respect of that decision.

Chris Nagel, Director / Head of HR at EML, comments…

 

“A point not specifically covered above, but which frequently crops up in the context of the advice we provide, is investigating officers overstepping the mark by casting opinions on an employee’s potential guilt. The scope for questions and questioning techniques being perceived as prejudicial can be minimised by asking open questions, e.g. who, what, when, where, how, why. Regarding investigation reports, these should be drafted on the basis that their purpose is only to conclude whether or not there is a disciplinary case to answer.”

 

Look out for our next post, which will deal with the importance of ensuring that employees know what to expect at a disciplinary hearing.