Disciplinary action against employee - advice for employers

Disciplinary hearings by employers will be fraught with legal problems and risks if process is not correct and consistent.

Many employers are unaware or forget that with employment law, process is as important and sometimes more important than substance because Employment Tribunals cannot substitute their own subjective views as to whether there are grounds for disciplinary action, they can only decide whether the employer, in terms of substance, has acted within a "range of reasonable responses". Findings of adequate or inadequate process are more black and white and 1 mistake can lead to a finding of unfair dismissal. Getting the process right may well save an employer from unfair dismissal claims.

Based on our experience of seeing the types of mistakes made in disciplinary hearings by employers, we have put together a best practice guide to help employers. Before initiating a formal disciplinary hearing sometimes it's worth considering if informal discussions could resolve the problem. For example, some employees will resign voluntarily at the thought of a disciplinary hearing. Others may accept the situation and agree to steps the employer recommends.

Some employers still feel more comfortable if they have legal advice and assistance to ensure mistakes are not made. If you would like experienced and specialist help dealing with employee disciplinary issues, please get in touch with employment lawyers.

Employment disciplinary process

Where the matter is serious and could lead to dismissal, or if the employee denies fault formal disciplinary hearing by the employer may be necessary.  The following are the usual next steps in the process, stratimng with a formal investigation and possible suspension :-

• Notify the employee - the employee should be notified in writing that a formal investigation that could lead to disciplinary steps is to commence. The notification should state the outline facts behind the investigation.
• Consider whether to suspend the employee on full pay - suspension should not be an automatic reaction whilst the investigation and disciplinary hearing by the employer takes place. However, employers should consider suspending an employee on full pay where allegations against them involve serious misconduct. This may be necessary to preserve the integrity of the investigation process or to safeguard the business and or other employees. It should be made clear to the employer that this is not in itself a form of disciplinary action by the employer. Employers may still be able to suspend even where the employment contract is silent. However extra care as to reasonableness is needed.
• Decide who should investigate - Usually, the employee’s line manager is responsible for investigating any allegations, however in some cases this may not be appropriate. For example, where the line manager has made the compliant against the employee or is a potential witness in the investigation or the employee has raised an informal or formal grievance against the line manager in the past. In these instances an employer should appoint an alternative person to conduct the investigation. In all cases, it is important that the investigating manager is different to the manager who will chair any disciplinary hearing. This avoids claims that the outcome of the hearing is prejudged.
• Ensure the investigation is thorough, fair and impartial - It is still necessary to carry out an investigation even where the employee’s guilt seems evident. The employee may have a plausible explanation for their conduct which needs to be tested by investigation. Any investigation should be undertaken quickly and without unreasonable delay. The thoroughness of any investigation should depend on the particular circumstances. Allegations of serious misconduct are likely to require a more extensive investigation. The extent of the investigation should be whatever is reasonable in the circumstances to ensure that the relevant facts are ascertained. Establishing the facts allows the employer to properly put forward its case. UK employment law requires that the employee fully understands the case they have to answer.Where the allegations relate to the honesty and integrity of the employee and there is a risk they could lose their job, a higher standard of investigation is required. Employers should pursue lines of enquiry which may prove an employee’s innocence as well as those which establish their guilt.
•  Detailed notes should be kept - Detailed contemporaneous notes should be kept of all witness meetings conducted during the investigation, including those with the accused employee. The notes should be signed by the witness to confirm they are an accurate representation of what was discussed.Keeping records of the investigation is vital. This ensures that there is evidence to show that the investigation was fair and sufficiently thorough. This is particularly important where a claim is made against the employer. Detailed notes should also be given to the employee in advance of any disciplinary hearing. The employee is then aware of all the evidence that the employer intends to rely on.
• Ensure confidentiality - Employers should be conscious of the need to maintain confidentiality throughout the investigation and the entire disciplinary process. The investigating manager should explain to witnesses that they should not discuss any details of the investigation with colleagues or third parties. They should also be informed of the need to keep the fact of the investigation confidential. A common problem faced by employers is that some witnesses may be reluctant and will only provide information if they are given an assurance of anonymity. The problem here is, if the case went to court, the employer would not easily be able to adduce the evidence. Sometimes a reminder of the obligation of good faith or fidelity owed by the employee towards the employer helps. In practice, it may be possible to establish an implied obligation for senior managers to report on another employee’s misconduct. However, it is unlikely that a junior employee would be legally obliged to inform on a colleague, in the absence of an express contractual obligation.
•  Decide if the employee can be accompanied to meetings - An employee does not have a statutory right to be accompanied to an investigation meeting. Employers do have special duties where a disabled employee is placed at a disadvantage. In these cases a relation of normal rules may be a good move by the employer.
• Remember the investigation is not a disciplinary hearing - the investigation is solely the process by which evidence is gathered to establish the facts. It is not a disciplinary hearing. During the investigation, if the employee admits their guilt, the employer must still invite the employee to a disciplinary hearing. At the disciplinary hearing the employee can present their side and any mitigating factors. Suitable disciplinary action can then be taken if appropriate.
• Implied duty of trust and confidence - A fishing expedition in order to obtain information about the employee without good reason can give rise to claims of breach of the employer’s duty to the employee. If there was a a claim made by the employee against the employer the Employment Tribunal will consider whether the decision to instigate disciplinary proceedings was outside the range of reasonable decisions open to the employer in the circumstances. This will require an objective assessment, not one made with the benefit of hindsight. It will be for the employer to prove that disciplinary process was fair being within the range of reasonable decisions.

What next after investigation?

At the end of the investigation, the investigating manager should review the evidence collected during the investigation and make a recommendation. It will help the employer in any later Employment Tribunal hearing if the investigating manager records their thought process. This should be supported by relevant evidence.

Where there is insufficient evidence to justify further action the employee should be notified, without unreasonable delay. If the investigating manager believes there is sufficient evidence to proceed, the employee should be invited to a disciplinary hearing being a newly constituted panel.

Process after formal disciplinary action is taken against an employee

The employee does have a right to appeal the outcome of a disciplinary hearing by an employer.  This means a reserve should be made for the appeal and that reserve is not involved in the first outcome decision. In our experience, most disciplinary decisions are appealed.  In smaller companies finding the personnel can be difficult.  The Employment Tribunal will have some sympathy but only to a degree.  Sometimes engaging an independent person for the appeal is worthwhile.  We can make recommendations for you.