Disciplinary processes play an essential role in maintaining safe, fair and professional working environments. It is safe to say that employers would never wish to need to rely on a disciplinary process however it may, on occasion, be necessary to do so.
Employers must go into any disciplinary hearing or investigation with a clear understanding of how to conduct a fair, reasonable and compliant process. Flawed disciplinaries, especially those which lead to a dismissal, open employers up to unfair dismissal claims and up to a 25% uplift in any compensation, if the process is found not to comply with the ACAS Code of Practice on Grievance and Disciplinary Procedures*.
Woodhead v WTTV Ltd & Anor [2025] EWHC 1128 (KB) is an example of how a flawed disciplinary process failed to take account of an accused employee’s mental health and which resulted in liability in the civil courts for psychiatric injury. The faults identified by Mr Justice Swift in this case have parallels with how an employer’s actions might be criticised in the Employment Tribunal.
Facts
Mr Woodhead was the Managing Director of WTTV Limited (“the Company”) and had a number of long-standing psychiatric conditions, had previously experienced episodes of anxiety and depression and was a recovering alcoholic.
In November 2019, he was called into a meeting without notice whereby he was informed that complaints of sexual harassment dating back to 2017 and 2018 had been made against him.
Mr Woodhead was then immediately subjected to a lengthy meeting in which he was expected to respond to five allegations of sexual harassment. He was then suspended to allow the investigation to continue. Mr Woodhead then started a period of sickness absence for anxiety and depression in early December 2019 and was admitted as an in-patient shortly thereafter.
Prior to the allegations being made, Mr Woodhead had been served notice to terminate his employment by way of redundancy due to a restructuring of the Company. His employment ended for this reason before the conclusion of the disciplinary proceedings however the Company did continue with the process post-Mr Woodhead’s employment.
What did the Company get wrong in this case?
The High Court was highly critical of the Company’s handling of the disciplinary process in 4 keys areas.
- The November 2019 meeting was “badly handled”
The initial meeting was not used to inform Mr Woodhead of the existence of the complaints and to suspend him to allow the investigation to take place and a separate meeting scheduled to conduct an investigation meeting. Rather, Mr Woodhead was given no notice of the meeting and was required to attend immediately and was given no notice or summary of the complaints raised against him which were to be investigated. The judge stated “Mr Woodhead was confronted with allegations that were both serious and intimate, and expected to respond to them without notice. There was no reason why matters had to be dealt with in this way.”
- The Company’s conduct immediately following the initial meeting
The High Court was critical of the unreasonable deadlines which were placed on Mr Woodhead. It found that the initial meeting took a toll on Mr Woodhead’s health, and correspondence was subsequently directed through his solicitor. Mr Woodhead’s solicitor asked for a postponement of the next investigatory meeting to allow Mr Woodhead to seek support from his GP and psychologist. The Company rejected this request and instead sent a copy of an investigation report and asked Mr Woodhead to comment on the contents and gave a deadline of just two days. Upon receipt of letters from the medical professionals treating Mr Woodhead, the deadline was lifted however the Company continued to chase for comments on the investigation report until Mr Woodhead was admitted to hospital.
In addition to this, it was found that the Company had falsely represented to Mr Woodhead the extent of the matters which he was asked to respond to. A different version of the investigation report, which was not shared with Mr Woodhead at the time, indicated that some of the allegations were to be determined in Mr Woodhead’s favour due to either not amounting to harassment or not being substantiated by evidence.
- The Company attempted to pursue disciplinary action even though Mr Woodhead remained on sick leave
Mr Woodhead’s GP provided a fit note to the Company stating that he had encountered, amongst other things, post-traumatic stress disorder, had suicidal ideations and required ongoing psychiatric support and therefore the fit note covered a period of 2 months. Accordingly, Mr Woodhead’s Solicitor asked that the disciplinary process be paused for at least this period. The Company refused to do so stating that due to the “ongoing distress of the complainant, it is reasonable for us to now require your client to provide us with any further comments on the investigation”. The judge in this case found these actions to be neither necessary nor reasonable.
- Attempting to get Mr Woodhead to agree to an assessment by an occupational health advisor
Notwithstanding that Mr Woodhead had provided two fit notes from his GP, the Company (through its Solicitors) did not accept that this was sufficient to indicate that Mr Woodhead was unfit to participate in the disciplinary process and therefore insisted that Mr Woodhead consent to a video appointment with an occupational health advisor. The Company’s solicitor pushed back on the suggestion that further information could instead be obtained from Mr Woodhead’s GP. Given that a face to face appointment would not have been possible due to the COVID pandemic, the Judge agreed that a video occupational health appointment would have been pointless to assess Mr Woodhead’s mental health.
How should employers handle disciplinary processes to avoid these mistakes?
Below we have listed some top tips for conducting a fair, reasonable and legally compliant disciplinary investigation process:
- Employees should be given at least 48 hours’ notice of any investigation meeting and should receive a reasonable description of the nature of the allegations to which they being expected to give their version of events;
- Suspension of employees should only take place where it is absolutely necessary and should never take place simply as a matter of course. Often suspension would only be justified if there is legitimate concern that an accused employee would tamper with evidence or intimidate witnesses or suspension is necessary to protect the employee themselves, third parties or other employees;
- If employers require additional information from a witness or accused employee then reasonable time should be given to allow an employee to reply to additional questions and/or provide evidence to support their position;
- The investigation process should not be used to determine guilt and is merely a fact-finding exercise to establish whether there is a case to answer in respect of any or all of the allegations;
- Employers must ensure that an independent person is appointed to conduct the investigation. This should be someone entirely unconnected to the employee or the incidents being investigated; and
- Accused employees have the right to receive all evidence considered as part of the investigation process as well as the findings of the investigating officer. In some instances, it may be appropriate to redact or anonymise information. Again, this should never be done as a matter of course but only where witnesses have raised concerns such as fear of retaliation.
What considerations should employers make in disciplinary processes for those who are disabled or on a period of sickness absence?
It would not be uncommon for an employee facing disciplinary action to take a period of sickness absence due to stress or anxiety caused by the process. The Woodhead case shows that an employer should not take a hard-line approach to forcing through a disciplinary process. The starting point is that an employee who is certified as unfit for work on a fit note is not automatically unfit to attend work-related meetings. However, if an employee is asserting that they are not well enough to attend, employers may wish to seek the advice of an occupational health professional and/or the employee’s GP as to their fitness specifically to attend a disciplinary hearing. There will of course be cases where it is plainly evident that an employee is unfit, the Woodhead case being an example of such. Employers should therefore be mindful not to force the issue where it is clear that it would be best to pause proceedings.
Disabled employees may need additional support to effectively partake in a disciplinary process. Employers should be mindful of their duty to provide reasonable adjustments at all stage of employment. Depending on the nature of the disability, employers may wish to consider adjustments such as:
- Allowing the employee to bring a friend or family member in place of a work colleague or trade union representative;
- Agreeing to take regular breaks during the course of the hearing;
- Supplying a copy of questions in writing before the hearing;
- Agreeing to hold the meeting in a neutral environment such as a hotel or conference room; and
- Recording the meeting either via video or audio.
Overall, employers need to balance the obligation placed on them to carry out their disciplinary process without undue delay with making reasonable and fair allowances and adjustments for those on sickness leave and with disabilities. The Woodhead case is the perfect example of how employers can take too hard line an approach and open themselves up to litigation which can prove costly and create unnecessarily stressful situations for all concerned.
If you'd like us to review your disciplinary procedures to ensure their compliance, please get in touch - our employment law team would be happy to help.
* The ACAS Code of Practice
The ACAS Code of Practice sets out the minimum standards that employers should follow when handling disciplinary and grievance issues in the workplace. Whilst not legally binding, employment tribunals take the Code into account when deciding the outcomes of relevant cases.
The information provided in this article is provided for general information purposes only, and does not provide definitive advice. It does not amount to legal or other professional advice and so you should not rely on any information contained here as if it were such advice.
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The information published across our Knowledge Base is correct at the time of going to press.
