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Getting to the root of the problem: Conducting a fair disciplinary process

There is no doubt that undertaking a proper disciplinary process will get a business in far less trouble than the oh so common, make-shift approach. This is because disciplinary procedures and rules are prescribed by law and require employers to operate all procedures at a set standard. It is a legal requirement for an employer to set out their disciplinary rules and procedures in their handbook, contracts (although this is not really advisable), or as stand-alone policies.

We regularly see headlines about businesses being brought before an Employment Tribunal for unfair dismissal, but what does this really mean? Quite simply, in the case of a misconduct dismissal (redundancy, capability and sickness absence are a whole other article in themselves!), this means an employee is alleging their employer has either not followed the correct dismissal procedure, or that the decision to dismiss was unreasonable.

Prior to reaching a decision to dismiss, an employee should normally be given warnings about their behaviour and an opportunity to improve (unless their actions are so serious and amount to gross misconduct). In any disciplinary process though (including allegations of gross misconduct), a proper procedure must be followed to better protect the employer against the risk of a claim.

Any potential disciplinary matter will need to be investigated, either by holding investigatory meetings and/or gathering evidence. The investigation is not disciplinary action and ideally, will be carried out by someone independent, who does not go on to carry out any disciplinary action. The level of detail of the investigation will depend upon the allegation, but guidelines state that it should be “reasonable in all the circumstances”.

Depending on the particular situation, it may also be appropriate to suspend an employee on full pay whilst an investigation takes place. Suspension is not in itself disciplinary action and does not infer that any decision has been made (two points which should be made clear to the employee). Any suspension period should be as short as possible and should be kept under review.

If the investigation determines that there is a case to answer then a disciplinary meeting should be set. Alongside formally inviting the employee to the meeting, you will need to notify them of the alleged misconduct and the potential consequences, as well as provide copies of all documents, evidence and statements you intend to rely upon. An employee should be given at least two clear days’ notice in order to prepare for the meeting, although you should consider whether that timeframe is reasonable and proportionate in the circumstances of the case. The employee has the right to be accompanied at a disciplinary hearing by a colleague or trade union representative, but there are rules on the companion’s involvement in the meeting.

Once you have listened to the employee’s case and received answers to any questions put to them, the meeting should be adjourned so that a decision can be reached (after careful consideration and without haste). Sometimes it is necessary to carry out further investigations before making your decision, which may involve further meetings with the employee. The decision should be communicated in writing and the employee should normally be provided with the opportunity to appeal, ideally to someone more senior but in any event, someone independent. An employee has the same rights to be accompanied at an appeal meeting as the disciplinary meeting.

Businesses dealing with disciplinaries involving senior staff or complex matters (or perhaps smaller businesses or businesses with limited management structure) sometimes struggle to find someone appropriate within the business who can carry out investigations and meetings. It is open to a business to use resources within associated companies and/or bring in external HR consultants.

View HR Ltd (ViewHR) has a wealth of experience when it comes to disciplinary investigations, meetings and appeals and can provide advice and assistance at every stage of the process. Gemma Murphy, Director said, “following the correct procedures and a thorough investigation is at the crux of reaching a fair and reasonable disciplinary outcome. Failure to do so will ultimately put the employer on the back foot when faced with an Employment Tribunal claim”. Gemma comments further that “involving an independent consultant when dealing with disciplinary matters, provides the level of impartiality and experience often required in complex or difficult matters”.