In employment law, to mitigate against an employee being able to bring a successful unfair dismissal claim or wrongful dismissal claim against their employer in relation to a misconduct sanction/ dismissal, the employer must follow the correct procedure in relation to disciplinary investigations and disciplinary hearings.
It is critical for an investigation into potential misconduct to take place prior to the employer deciding to progress to a disciplinary hearing and/or issue a disciplinary sanction. Failure to do so will fall foul of the ACAS code and the principles of fairness established by case law.
The purpose of an investigation is to:
- see if there is a case to answer;
- make sure there is fair and consistent treatment within the business:
- gather information from all involved; and
- decide what should happen next.
How much investigation is required?
The amount of investigation will vary according to individual circumstances of each case.
The legal test is that the employer should hold as much investigation as is “reasonable in all the circumstances”. Broadly, the more serious the allegation, the more thorough the level of investigation required.
Who should conduct the investigation?
The most appropriate person is usually the employee’s immediate line manager. However, again this will be dependent upon the facts of each case. If the line manager is a potential witness to the alleged misconduct, it would not be appropriate for them to be the investigator. If this is the case, the employer can appoint a member of the human resources department or another line manager.
It is important that the employer takes into consideration the need to have independent individuals in reserve to chair any potential disciplinary hearing and a potential appeal hearing. It is usual to have an appeal hearing chair who is more senior than the person who chaired the disciplinary hearing.
A right to be accompanied?
Employees have no statutory right to be accompanied at an investigatory meeting. However, your staff Handbook provides that an employee is entitled to bring a companion to the meeting who is either a trade union representative or a colleague.
It is important to keep the investigation confidential as ultimately, this may not result in any disciplinary action. For example, witnesses should be advised not to discuss the investigation with other employees or third parties.
ACAS advises that, by keeping the matter confidential, it will reduce any potential breakdown of trust and confidence between employer and employee should the matter not proceed to disciplinary action. This will help ensure staff morale is not affected and will reduce the risk of witnesses colluding and agreeing what their evidence should be.
Obtaining the evidence
The ACAS Code says that the investigation should happen “without unreasonable delay”. For example, witnesses should be spoken to whilst the witnesses still remember the incident.
Where a witness is reluctant to give evidence, an employer should remind the employee of their obligation of good faith and fidelity owed towards the employer. Assurance of anonymity should rarely be given to a reluctant employee.
It is important that the employer keeps records of the investigation carried out to show that is was handled fairly and thoroughly. Record-keeping is also important to meet the employer’s obligation to provide the employee with copies of all evidence that it intends to rely on in advance of any disciplinary hearing.
Records should include the following:
- Details of the allegations;
- Details of the investigation and any information that came to light as a result;
- Copies of any correspondence sent to the employees;
- So far as possible, the rationale for decisions taken.
The contractual rights of the employee being investigated
There is often a fine line between the need to investigate thoroughly and the rights of the employee being investigated. An employer must be careful that the questions they ask any witnesses are no more than necessary to ascertain information. Regard should always be had by the employer to the implied duty of trust and confidence owed to the employee.
Further action required
The investigating officer will decide whether the investigatory findings constitute “a case to answer” and whether a disciplinary hearing is therefore warranted or not.
A disciplinary hearing should be held as soon as reasonably possible after the investigation has concluded. prior to the disciplinary hearing, the employer should set out in writing to the employee:
- The alleged misconduct or performance issue;
- Any evidence gathered from the investigation and copies of the same;
- Any further information that should be discussed with the employee;
- The date, time and location of the hearing;
- The employee’s right to be accompanied; and
- Potential outcomes to be discussed.
It would normally be sensible for the employer to hold the disciplinary hearing at the workplace office. However, this will be determined on a case-by-case basis, and sometimes external locations are preferred.
The employer and employee should make every effort to attend the hearing. If the employee fails to attend the first hearing, it is usually good practice for the employer to re-arrange the meeting to an alternative date and give the employee a second chance to attend. Where the employee fails to attend an alternative date, it may be possible for the employer to “make a decision on the evidence available” and without any input from the employee.
Contents of the meeting
The employer should explain what the issue is, discuss the evidence collected so far and ensure that there is a note-taker present.
The employee should be given a chance to respond to any questions the employer presents and respond to the allegations and information provided to them. The employee can ask questions, provide evidence and call any witnesses (with good notice).
Ill-health and stress
A common problem for employers is that the employee cannot attend a Disciplinary Hearing due to ill-health, citing work-related stress as the cause.
If the employee is still absent after a period of time, the employer may, subject to the employee’s consent, obtain medical advice as to whether the employee is fit to attend a hearing.
The employer should read the employee’s contract of employment to see whether there is a clause requested the employee to submit a medical examination.
Where practicably possible, it is important to ensure that the person who chaired the investigation hearing is not the person who will be conducting the disciplinary hearing. Otherwise, the chairperson will be seen as impartial.
Regard should also be had to the question of who might hear any potential appeal.
Right to be accompanied
The staff handbook and the law provides that an employee is entitled to be accompanied by a trade union representative or a fellow worker at a disciplinary hearing.
Disciplinary hearings for the purposes of this right could result in the following:
- A formal warning being issued;
- The taking of another Disciplinary action such as suspension, demotion or dismissal; or
- The confirmation of a warning or some other disciplinary action.
If the employer decides to uphold the allegations, most disciplinary procedures provide for a first written warning, a final written warning, dismissal with notice or a summary dismissal.
The decision for the employee is whether they uphold the allegation, or not, and if they do, the employer will need to decide what sanction they impose on the employee as a result.
The employer should tell the employee the outcome as soon as possible in writing.
The employer should offer the employee the right to appeal. If the employee appeals, they can appeal the decision if, for example, they feel the decision is too severe, or the disciplinary procedure was wrong or unfair.
The employer should let the employee know of a deadline to loge their appeal. Although ACAS does not stipulate a time limit, employers should do so to ensure the appeal is dealt with formally and fairly.
The employee should be asked to state their full ground of appeal in writing. The employer should look at the employee’s case again and consider whether the procedure was followed in a fair way and whether the outcome was fair.
The employer should hear the appeal, carry out further investigations, consider whether the disciplinary hearing concluded a fair outcome and provide the final outcome in writing as soon as possible.
The chairperson should be a different person who has carried out the investigation and disciplinary so far to ensure impartiality. The chairperson in an appeal hearing will usually be more senior than the person who carried out the case previously.