In our latest HR Coffee Break Briefing webinar, Employment Expert & Associate Chris Dobbs looked at disciplinary procedures, outlining the importance of ensuring they’re fair and the legal risks to avoid.
This is the summary of that webinar. You can watch it back below, or read on for the summary.
Quick Links
- The Basics
- Alternatives to Disciplinary
- The importance of a fair procedure
- Investigation Reports
- Disciplinary Hearings
- Legal Risks
The Basics
Disciplinary procedure is usually started where an individual's conduct falls below the standards set out by the business and intends to improve behaviour.
What’s the difference between misconduct and gross misconduct?
What is considered misconduct and gross misconduct will probably be set out in your policy, contract or handbook. It won’t be exhaustive, but your starting point will be to use that list to work out what an employee’s actions fall under.
You won’t find a legal definition of gross misconduct but, to me, it’s an act that you would consider terminating an employee over, after following the disciplinary process.
It’s important that you decide whether an employee may have committed gross misconduct from day one, otherwise you could run into issues.
For example, if you refer to an employee’s action as just misconduct yet, at a later date, wish to dismiss them on grounds of gross misconduct, there’s an argument that the employee will not have been taking their defence as seriously and is now being faced with dismissal. This could lead to an allegation of unfair dismissal.
Related: Employment Status and Contracts - How to get it right
What is the disciplinary procedure?
The process and procedure when it comes to disciplinary and investigations will be something as follows:
- You become aware of an issue
- Subsequently undertake an investigation
- This involves the gathering of evidence
- The disciplinary hearing takes place, deciding the outcome
- Delivery of outcome
Related: The Dos and Don'ts of Workplace Investigations
Alternatives to a disciplinary process
You should always be considering a potential route of action that is not a disciplinary procedure, where you think necessary. Of course, there will be situations where you have no choice but, in some situations, there are other means of resolving issues.
For example, performance management or management intervention. In some situations, you may need to consider a change to procedure or policy. Perhaps its not the employee who is at fault, they may be following incorrect or out of date procedure set out by the company.
Mediation is another option that’s worth considering. It may well mean that you avoid a potential disciplinary process, unfair dismissal and a legal claim.
Following an investigation report, any of the above may be recommended instead of, or before, a disciplinary hearing.
Related: Performance & Capability: Everything employers need to know
The importance of a fair procedure
When conducting a disciplinary, the legal claim that you’re most at risk of is of course an unfair dismissal.
If an employee has more than 2 years of service under their belt, a dismissal can be factually unfair where there were no grounds for dismissal or procedurally unfair where the process was tainted.
This means that you have to have reasonable belief that the person has actually done the thing you've accused them of and that it amounts to gross misconduct, and that you have to ensure the process is fair throughout the entire procedure, not just at the final decision stage.
Related: Discrimination and Equality: Unlawful Conduct
The purpose of investigations
According to ACAS guidance: “An investigation is a fact-finding exercise to collect all the relevant information on a matter. A properly conducted investigation can enable an employer to fully consider the matter and then make an informed decision on it.
Making a decision without completing a reasonable investigation can make any subsequent decisions or actions unfair, and leave an employer vulnerable to legal action.”
These guidelines, to all intents and purposes, are a minimum standard that you should follow. Failure to comply can result in an uplift in the employment tribunal of up to 25% of any compensatory award.
So, make sure to check your policies and make sure that the people who are running these procedures are aware of the expectation on them.
What evidence can be used in a disciplinary?
Your primary evidence in most cases is going to be witness statements. Your job as investigator is to establish ‘who, what, when, why, where, and how’.
You should also consider:
- Documentary evidence (e.g. financial statements, email chains, texts etc.)
- CCTV (be aware of the source of any CCTV footage, any data protection obligations and consents)
- Internal records
- Any other relevant evidence which may be appropriate to the particular facts or your business
What should an investigation report include?
An investigation report will be some kind of report that collates all of the evidence and is designed to assist the decision maker.
It should:
- Identify any uncontested facts,
- Identify contested facts and what you think is more likely to have happened,
- Explain any circumstances where you cannot establish what happened.
If you can't establish what happened, then say so in your report. It’s just as useful to the decision maker at the final disciplinary hearing to know what you've not been able to figure out because then they know what they've got to target in their own analysis of the facts.
Disciplinary Hearings
If a disciplinary hearing is needed, think about what the disciplinary chair will want to see. They will want a good investigation report that follows ACAS guidelines and allows them to make an informed decision.
As investigator and decision maker you've got slightly different objectives but, either way, will want to stay in control of the process. So, make sure you’re prepared for the hearing.
If there are gaps in the investigation report that you can go back to the investigator and ask about, do so. It's much better to delay the disciplinary hearing by a couple of days and ensure you've got everything you need in front of you than to have to suspend it mid-hearing.
Right to be accompanied
Under Section 10 of the Employment Rights Act, “a worker [who] is required to attend a disciplinary hearing” must be permitted either an employed Trade Union representative, an internal Trade Union rep or a colleague.
Others who you may allow to attend include:
- Anyone needed for a reasonable adjustment, such as a translator or mental health advocate,
- Parents, especially if the individual is a minor,
- Anybody else who is going to help the process and is not disruptive.
What should an outcome letter include?
Outcome letters should be written by you as the decision-maker. Ensure you cover:
- The decision
- Your findings from the hearing (i.e. the evidence and justification for the decision)
- The outcome itself (e.g. dismissal)
- Any further steps or recommendations
- The right to appeal, in line with ACAS guidance.
What are the legal risks of a disciplinary process?
An unfair dismissal claim. The basic award for an unfair dismissal is exactly the same calculation as statutory redundancy and the longer somebody has been at the company the higher their basic award will be.
The tribunal has the power to award up to a year’s salary, capped currently at £115,115. They will likely award a compensatory amount for the realistic time that somebody has lost earnings or could have lost earnings.
I think the legal burden in unfair dismissal falls slightly on the employer side. The test is ultimately that you have a reasonable belief that an action occurred that amounted to gross misconduct based on the evidence from a reasonable investigation.
The test for the tribunal is whether dismissal is in the range of reasonable responses. If they think that another employer in the same situation as you could have come to the same decision, that is enough.
Despite this, an unfair dismissal claim does still obviously carry a potential risk to your finances and reputation.
Upcoming Events
Don’t worry if you missed this webinar, there’s still plenty more to come over the next few months as our employment team continue to talk you through the employee lifecycle.
The next one is taking place on Wednesday 12th June, where Chris will bring you up to speed with the new Family Friendly Rights.
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You can also find recordings, slides and summaries of previous webinars here.
Employment & HR Solicitors
Our bright Employment Team has a vast experience in advising employers in cases of all kinds.
We’d be happy to provide tailored advice and assist you in regards to discipline, conduct issues and mitigating claims.
You can call us on 01202 499255, or fill out the form at the top of this page, for a free initial appointment.
We also offer tailored courses for new and experienced employers and HR professionals alike, which may be useful to you. You can find out more here.
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