In order to conduct disciplinary proceedings fairly as specified in the Code of Practice for Disciplinary and Grievance Procedures, an organisation needs to carry out a disciplinary investigation to establish the facts. A thorough, well-conducted investigation may prevent cases of unfair dismissal and reduce the likelihood of a Tribunal claim.
In the most straightforward and minor/first breaches of rules an informal talk with the employee in question may be sufficient to correct the situation. If however a more formal approach is decided upon and there is a need for a formal verbal warning (with a record remaining on the employee's file for 6 months) then a brief meeting should be called and the employee afforded the right of representation, either the statutory right of a work colleague or union official, or anyone else if this is specified in the organisation's terms of employment.
However, where an employee currently has a warning on file that is not spent, or if the misconduct may warrant a sanction greater than a verbal warning, the following guidelines may assist:
No action should be taken by an employer before a proper investigation has been carried out relating to the circumstances of the matter complained of. If appropriate, the employer may consider suspending an employee from work for a specified period whilst the investigation is undertaken. However, if the employee is suspended their contract of employment must continue together with all rights which the employee has under the contract including payment of salary/wages.
Designate an investigator - in a serious or complex case there might be a panel of investigators, including members of management and trustees, appropriate to the size of the organization. The role of the investigator is to:
Gather information - as soon as possible, speaking to witnesses and concerned parties while memories are still fresh;
Scapegoat - ensure that the employee in question is not being singled out by one or more employees for personal reasons;
Take formal statements - from witnesses and concerned parties, ensure that the witnesses understand that this evidence is confidential, but that it may be used by a disciplinary panel. The investigator(s) must determine - in the case of eye witnesses - where the witness was in order to see the events, the time of day and why they were there at the time. It is best practice to get any witnesses to sign and date their statements. Caution must be exercised if a witness wishes to remain anonymous. In such cases the importance of their evidence should be explained to the witness but if, despite reassurances, they still do not want their identity disclosed, it may be possible to edit their written statement in a way that protects their identity. If the witness remains dissatisfied or if he refuses to allow his evidence to be used, it is prudent to disregard that evidence.
Collect evidence - collect any relevant documents or material evidence.This may include CCTV footage or recordings, emails, correspondence, recordings of telephone conversations (bearing in mind that employees MUST be aware that calls are being recorded).
Put hearsay to one side - avoid making decisions or judgments based on hearsay.
Keep records - of the investigation, the correspondence, witness statements the Hearing and its outcome. Unfortunately many cases have shown that records have not been kept and such organisations have been unable to demonstrate that a fair process was followed at any subsequent Tribunal Hearing.
If as a result of the investigation it appears that an act of misconduct has been committed the employer should proceed with a disciplinary hearing. The employee should be given details in writing of the complaint sufficiently in advance of the hearing in order to permit them to prepare themselves and to advise the employer who their representative will be, should they choose to be represented. NB: A recent judgment from the Tribunal sets down that 48 hours notice of a disciplinary hearing 'was an unreasonably short time' for the claimant to prepare before attending a disciplinary hearing. If the employee is at risk of losing their job due to their alleged actions, they should be advised of this at the same time.
On occasions, following notification that a disciplinary hearing is to take place, an employee tells the employer that they are unable to attend the hearing because they are sick. If this happens, the employee should be asked to obtain a medical certificate and the hearing should be re-arranged on a different date. If the employee subsequently states that they are still unable to attend, re-arrange the hearing once again but state that if the employee is unable to attend on the rearranged date, the employer may decide to continue the disciplinary process in the employee's absence.
At the hearing the employee should be given the opportunity to state their case and the employee should also be permitted the right of representation, either the statutory right of a work colleague or union official, or anyone else if this is specified in the organisation's terms of employment.
At the beginning of the meeting those present should be introduced and the purpose of the interview explained. The person chairing the hearing should ensure that the employee is fully aware of the nature of the complaint and he should be advised of the detailed allegations resulting from management's investigation. Depending upon the management resources of the organisation, it would not be considered good practice if the person who conducted the management investigation also chaired the hearing and decided upon the disciplinary action to be taken. In a fair hearing, the "judge" is not the "investigating officer".
The employee should be allowed to state their case and consideration should be given to any explanations put forward.
If new facts emerge it may be necessary to decide whether further investigation is required. If so the meeting should be adjourned and re-convened when the investigation is completed.
An adjournment should be called before reaching a decision. A clear view needs to be arrived at on the facts, and if they are disputed it will be necessary to decide on the balance of probability what version of the facts is true.
Before deciding on the penalty consideration must be given to:
- the gravity of the offence;
- the penalty applied to similar cases in the past;
- the employee's unspent disciplinary record and general service;
- any mitigating circumstances;
- whether the proposed penalty is reasonable in the circumstances.
The disciplinary meeting should then be re-convened and the employee should be clearly informed of the decision and penalty, if any. The employee's right of appeal and how it operates should be explained. In the case of a warning the following should be detailed: the improvement expected and the frequency of any performance review meetings; how long the warning will remain active; the consequences of a failure to improve or to meet the required standard.
A record of the outcome needs to be made and should be confirmed to the employee in writing with a simple record of the action kept on file for future reference.
The employee must be given the right of appeal, and this should be advised to them in writing. If the right of appeal is exercised by the employee a further hearing should be arranged. If the resources of the organisation are such that the appeal chair can be a person who was not involved in the original disciplinary decision, then this should occur. Whenever possible the appeal should be chaired by a person from a more senior level of management. The employee should be given, once again, the opportunity to state his case and put forward any explanations.
The emphasis on the appeal hearing is to ensure the disciplinary hearing was carried out correctly, the evidence presented appropriately, the employee was given the opportunity to present his case and the disciplinary action taken was proportionate to the misconduct. It does not need to be a re-hearing of the original disciplinary hearing unless there have been procedural errors which need to be addressed, or new evidence has come to light. In such circumstances a re-convened disciplinary hearing usually should be called and the process commenced again.
Finally, the employee's performance should be monitored. The disciplinary action should be followed up with the object of encouraging improvement and progress should be regularly discussed with the individual.
Retention of Disciplinary Sanction(s)
In most cases any sanction imposed on an employee following disciplinary action will have an end date - either 6 months (formal verbal) or 12 months (for written or final written warning). Once the date has lapsed these sanctions are 'spent' and should not remain on file nor should they be referred to or relied upon if disciplinary action is required at some later stage.
JACS recognises that it is often difficult for small employers (i.e. those with a single manager/owner and a very small number of employees) to conform to all the recommendations. In particular, such employers may find it impossible to hold a disciplinary appeal using a different person to chair the appeal than the person who took the disciplinary decision in the first place. Similarly, the size of an organisation may make it inevitable that the same person chairs a disciplinary hearing having previously acted as the investigator of the alleged misconduct. In the Employment Law the Tribunal is able to consider the size and administration resources of the organisation in determining whether the employer acted reasonably. Providing employers in small organisations make every effort to ensure fairness, despite the limitations of their resources, the Tribunal should take that into account.
JACS Jan 2014