Managing disciplinary issues in the workplace is something few managers relish. However, employers could be exposed to successful unfair dismissal claims if they don’t follow a fair procedure.
Here we look at the key steps employers must follow.
Prepare
Review and adhere to your organisation’s disciplinary procedure and ensure it complies with the Acas Code of Practice on disciplinary and grievance procedures. Assign responsibility for the investigation to someone who ideally has had no prior involvement in the matter. Where this isn’t possible (e.g. due to the size of the company), consider appointing an external third party to conduct the investigation.
Conduct the investigation without unreasonable delay. Inform the employee under investigation of the reasons for it. Consider whether it is necessary to suspend the employee during the investigation and document your reasons if you do. Minimise the period of suspension and review regularly.
Investigate and gather evidence
Collate relevant evidence and continue to collect this as the investigation progresses. Interview witnesses to obtain their account of the alleged incident or events and produce clear, comprehensive notes of the meetings.
Interviews should be held in private and the need for confidentiality should be emphasised to all involved. Sometimes it may be necessary to interview witnesses and/or the employee subject to the investigation more than once if new facts or discrepancies arise.
Informal or formal action?
If the investigation concludes that formal disciplinary action isn’t required, a letter should be sent to the employee to let them know of the outcome, and, where there has been misconduct, outlining the potential consequences of further misconduct.
If the issue progresses to a formal disciplinary hearing, determine the most appropriate person to undertake the hearing. If at all possible, this should be someone who has not been involved in the investigation. Provide the employee with all of the evidence relating to the investigation to enable them to prepare their case, giving reasonable notice of the hearing.
Employee right to be accompanied
Employees have a statutory right to be accompanied in formal disciplinary, grievance and appeal hearings. A companion can be a fellow worker, trade union representative, or other trade union official. The companion can ask questions and make points on behalf of the employee, but they cannot answer questions which have been directly put to the employee.
The hearing
Ask questions, consider responses and take note of mitigating factors. A written record of the meeting should be taken and agreed with the employee wherever possible. Where appropriate, it is a good idea to record the meeting, but the employee should be made aware and provided with a copy of the recording.
Determine outcome
Check company procedures and the outcomes of investigations related to instances of similar misconduct in the past. The employee should be informed of the outcome in writing, or where advised verbally, the decision should be confirmed in writing. If disciplinary action is taken, the letter should clearly set out the reasons and explain the consequences of further misconduct. The outcome should also set out how long any formal warning will be active, i.e., take into account where there are further disciplinary proceedings. The letter should also set out the right of appeal.
Right of appeal
An employee has the right to appeal if they feel the action is wrong or unfair. The grounds of their appeal should be set out in writing before the appeal deadline. An appeal hearing should be undertaken without unreasonable delay and if possible, by someone who has not been involved in the initial disciplinary process. Employees have a statutory right to be accompanied at an appeal hearing and should be informed of the outcome in writing, as soon as possible.
If you’re an employer who needs support implementing effective disciplinary procedures or you are considering appointing an external third party to conduct a pending investigation, take a chance on EML and contact us on 01942 727200 or enquiries@employeemanagement.co.uk in confidence and without obligation, to find out how we can help.
Alternatively, you can find an abundance of resources available for free download on our website, including various factsheets with regards to what happens when disciplinary processes go wrong.