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Ten things managers need to know about...misconduct disciplinary situations

26 May 2010

1. It matters if you get it wrong

If an employer fails to follow a fair disciplinary procedure and the employee is subsequently dismissed the employee will be able to claim unfair dismissal. This is the case even if the employer had a genuine reason for the dismissal; employment tribunals take a very dim view of procedural failures.

Conversely, where the disciplinary process has been conducted correctly an employer will have a good defence to any subsequent claim for unfair dismissal and will be in the best position to see off spurious claims.

Even if an employer does not dismiss the employee, an employee may be able to resign and claim constructive dismissal if the disciplinary process has been handled very poorly (as this could amount to a breach of the implied term of trust and confidence).

In extreme cases, the way in which a disciplinary process is conducted could give rise to claims for discrimination (for which the potential compensation is uncapped).

2. It is not impossible to get it right

Although the legal requirements may seem daunting, the elements of a fair disciplinary process are not overly complex or technical.

A disciplinary process can broadly be broken down into the following elements:

carrying out a thorough investigation to establish the facts
informing the employee of the evidence and the basis of the case against them.
holding a meeting with the employee to allow them to answer the allegation
deciding the facts, whether the allegation is made out and if so the appropriate sanction
dealing with any appeal against the decision

The Code of Practice on discipline and grievance issued by ACAS in April 2009 sets out best practice for dealing with misconduct and poor performance disciplinary matters. Not only is this a helpful practical guide but, as employment tribunals can take its recommendations into account when deciding if a dismissal is fair or unfair, it should be required reading for managers involved in conducting a disciplinary process.

3. Keep an open mind

However overwhelming the evidence appears at face value, any manager involved with the disciplinary process must remember that the employee could provide a perfectly legitimate explanation for the alleged misconduct which would render it inappropriate to impose any disciplinary sanction at all.

Even where a case appears to involve gross misconduct an employer should conduct a proper investigation in order to satisfy itself of the facts. In cases where the allegations against the employee are particularly serious it will usually be appropriate to suspend them on full pay while the investigation is carried out. An employee should be given the chance to defend themselves in a formal meeting before any action is taken.

It is very important that an employer is not seen to be pre-judging the issue. Until the completion of the disciplinary process any allegations of misconduct are just that and could be found to be untrue or unproven.

4. You must establish the facts before you make any decisions

In complex cases you will need to talk to witnesses and may wish to hold investigation meetings with the employee before any formal disciplinary meeting.

The more serious the consequences of dismissal for the employee, the more careful the investigation which is required. Employers should look for evidence which may exonerate the employee as well as that which may point to their guilt.

It may be necessary to adjourn the disciplinary meeting in order to carry out further investigation where the employee raises new issues about witness evidence or new facts come to light.

It is important that a thorough investigation is completed and all relevant evidence considered before any disciplinary decision is taken.

5. Avoid an ambush: an employee must be pre-warned of the case against them

Following an investigation, it is decided that there is a disciplinary case to answer, the basis of that case should be set out in writing and notified to the employee together with the possible consequences if the disciplinary case is made out.

This will enable the employee to properly prepare for the disciplinary meeting and to be able to answer the case against them. This will normally involve sending copies of any written evidence such as witness statements that the employer intends to rely on.

An employee should be given a reasonable amount of time to prepare for the meeting.
At the meeting the employer should explain the complaint against the employee and go through the evidence that has been gathered.

The employee should then be allowed to answer that case and set out their defence by presenting evidence (including calling relevant witnesses if they wish), asking questions and raising any issues about the evidence presented by the employer.

6. Need to keep the momentum of the process going

It is not uncommon for employees who have been invited to a disciplinary meeting to subsequently submit a medical certificate and go off sick. However, this does not necessarily mean that an employer is expected to put the disciplinary process on hold indefinitely. It may be in the employee’s best interests to complete the process in order to help them recover their health, particularly if they are suffering from stress or anxiety.

The employer should consider making adjustments such as offering to holding disciplinary meetings at the employee’s home or by telephone or inviting them to make written submissions only. If in doubt, an employer should consider getting an occupational health report on the employee to establish the best way of proceeding. By keeping the momentum of the process going the employer can avoid slipping into a limbo situation with the employee remaining absent indefinitely.

7. Don’t put off till tomorrow what you can do today

Any conduct issues should be raised with employees promptly. An employee can not be expected to improve their conduct if the employer does not make it clear what they expect. Initially, in cases which are not very serious, this may be best done informally by having a quiet word with the employee.

Formal meetings should not be unreasonably delayed. Information regarding the disciplinary procedure and the misconduct allegations should be given to the employee as soon as possible. Any decisions taken should be confirmed in writing immediately after any meeting.

If there has been undue delay in dealing with matters, the fairness of the whole process can be threatened. Not only do the principles of natural justice require matters to be dealt with promptly, but from a purely practical perspective memories fade and evidence becomes less reliable or is lost altogether if there is delay in investigating allegations.

8. Don’t forget the right to be accompanied

At any meetings held under an employer’s formal disciplinary procedure (including appeals) employees have a statutory right to be accompanied by a work colleague or trade union official. Such a companion may not answer questions at the meeting on behalf of the employee but may put their case and address the meeting on their behalf.

If an employer does not allow an employee to exercise this right an employment tribunal may make an award of up to two weeks’ pay (subject to the statutory cap). Such a failure would also be a breach of the ACAS Code and could lead to a finding of unfair dismissal.

There is no statutory right to be accompanied by a lawyer at a disciplinary meeting. However, case law has established that where the disciplinary charge is so serious that the employee may be prevented from working in their profession in the future if the case against them is made out they may have such a right. If a request is made for a lawyer to be present at a disciplinary meeting an employer should carefully consider if this is appropriate in the circumstances.

Employees should be informed in writing about this right before any meeting and, if they chose not to be accompanied they should be asked to confirm, before the start of any meeting, that they do not wish to be accompanied.

9. Any sanction should reflect the severity of the misconduct

Where you are satisfied that the evidence shows the employee committed an act of misconduct it will then be necessary to consider the appropriate sanction. This should be in accordance with any policy set out in the staff handbook.

Many acts of misconduct will justify only disciplinary sanctions short of dismissal such as a written warning. This should set out the misconduct, the improvement required (with any timescale), the consequences of any further misconduct and the amount of time for which the warning will remain ‘live’.

Only in very serious or recurring cases of misconduct will the appropriate sanction be dismissal.
Where an employer is considering dismissal as a sanction it should carefully consider if there are any mitigating circumstances (for example, very long service) which mean a lesser penalty may be imposed.

It is very important to make sure that disciplinary sanctions are consistently applied so that employees who have committed the same sort of misconduct are given the same level of sanction.

10. The appearance of impartiality and independence is critical

Ideally this would involve different people, who were not connected to the allegation of misconduct, carrying out the investigation, holding the hearing and dealing with any appeals.

In smaller organisations it may not be possible to have different managers for each of these stages but it may be appropriate to consider using an independent third party from outside the organisation to hear any appeal in order to guarantee impartiality.

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