We advise employers on disciplinary issues and guide them through the steps to be taken when dealing with disciplinary matters.

Many employers are unaware or forget that, with employment law, the process can be just as important as, and sometimes more important than, the substance. Employment Tribunals cannot simply substitute their own subjective views as to whether there are grounds for disciplinary action. They must consider whether the employer has acted reasonably, including whether the decision to dismiss falls within the "range of reasonable responses". A flawed disciplinary process can undermine an otherwise reasonable decision and may result in a finding of unfair dismissal. Getting the process right may well save an employer from an unfair dismissal claim.

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 is 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 the steps the employer recommends.

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

Employment disciplinary process

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

Notify the employee

The employee should be notified in writing that a formal investigation into matters which could lead to disciplinary action is to commence. The notification should state the nature of the allegations and 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 are taking place 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 or other employees. It should be made clear to the employee that this is not in itself a form of disciplinary action. Employers may still be able to suspend even where the employment contract is silent. However, additional care is needed to ensure that the suspension is reasonable and appropriate in the circumstances.

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 complaint 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 good practice for the investigating manager is different to the manager who will chair any disciplinary hearing. This avoids any concerns that the outcome of the hearing has been 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 what is reasonable in the circumstances to establish the relevant facts. Establishing the facts allows the employer to properly put forward its case.

UK employment law requires that the employee is given sufficient information to understand the allegations and evidence 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 support the employee's case as well as those which may support the allegations.

 Detailed notes should be kept

Detailed contemporaneous notes should be kept of all witness meetings conducted during the investigation, including those with the employee concerned. The notes should be checked by the witness and, where appropriate, signed or otherwise confirmed as an accurate record 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. Relevant evidence should be provided to the employee in advance of any disciplinary hearing, so that the employee is aware of any 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 unless there is a legitimate reason to do so. 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 that, if the case went to an Employment Tribunal, the employer may not easily be able to rely on 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.

Whether an employee has an obligation to report another employee's misconduct will depend on the circumstances, including their role and contractual duties.

Decide if the employee can be accompanied to meetings

An employee does not have a statutory right to be accompanied at a purely investigatory meeting, although employers may allow this as a matter of good practice or under their policies. However, employees generally have a statutory right to be accompanied at a disciplinary hearing and appeal hearing.

Employers do have special duties where a disabled employee is placed at a disadvantage. In these circumstances, an adjustment to the usual process may be appropriate.

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 the conduct, the employer should still follow a fair disciplinary process where disciplinary action is being considered. 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 disciplinary investigation should have a proper basis and should not be used simply as a fishing expedition to obtain information about the employee without good reason. An unreasonable approach can potentially give rise to claims of breach of the employer's duty to the employee.

Where an employee challenges the decision to commence disciplinary proceedings, the Employment Tribunal will consider the circumstances and consider whether the employer acted reasonable. This will require an objective assessment based on the information available to the employer at the time, rather than with the benefit of hindsight.

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 reasoning and the evidence supporting their conclusions.

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 before a newly constituted panel.

Process after formal disciplinary action is taken against an employee

The employee will generally have a right to appeal the outcome of a disciplinary hearing by an employer.  It is good practice for the appeal to be dealt with by someone who was not involved in the original decision, where practicable.

In smaller companies, finding the appropriate person can be difficult. The Employment Tribunal will take the size and resources of the employer into account when considering the fairness of the process, although this does not remove the need for a fair process. Sometimes engaging an independent person for the appeal is worthwhile.