Disciplinary Procedures Issues
10 thorny issues in the disciplinary process and how to handle them
In any business, an employer will set standards of performance and conduct which they expect all of their employees to meet. It is inevitable that at some point or other, formal action will be needed as a result of an employee’s behaviour.
Most companies will have their own disciplinary process but even if this process is clear, some difficult practical issues may arise. We have set out below some of the more common questions that are asked:
Employees have a statutory right to be accompanied by either a work colleague or a trade union representative. As an employer, you are not obliged to allow a family member to attend the hearing. You are also generally not obliged to allow a lawyer to attend a disciplinary hearing although you may wish to consider this (after taking legal advice) if the outcome of a disciplinary hearing could be that the employee loses the ability to carry out their career in their chosen field e.g. a teacher or a doctor.
In these circumstances, you should rearrange the hearing. If the companion continues to be unavailable, generally speaking, you should allow for two more rearranged dates and then, if the companion still cannot attend, ask the employee to either find a new companion or to agree that the hearing will take place without a companion.
If it is the employee who continues to be unavailable, you should be wary of proceeding with the hearing without the employee being present. There must be a compelling reason to proceed without the employee at the hearing and you must have exhausted every other avenue before proceeding down this route (see point 3 below).
What often happens when disciplinary proceedings are started, is that an employee will sign off sick.
This does not necessarily mean that you cannot proceed with the disciplinary hearing, but you have to exercise more caution and you need to take into account the reasons why the employee is signed off sick.
The first step is to see how long it is likely the employee will be off sick for and postpone the hearing until they are fit to attend. If it appears that the employee is likely to be off sick on a long-term basis, you could offer the following alternatives:
- holding the disciplinary hearing off-site;
- holding the disciplinary hearing by telephone;
- offering to provide the questions in writing and for the employee to respond in writing
You could also suggest that the employee is sent to occupational health to see whether they are fit enough to attend a meeting as opposed to returning to their full duties at work.
This is a tricky situation but being off sick does not mean that as an employer you are unable to do anything at all. It is important to take legal advice when faced with this situation.
This can often be used by an employee to make the whole process far trickier to deal with.
There is no legal requirement on you as the employer to postpone a disciplinary hearing simply when a grievance is raised. It may be the case that the grievance can be dealt with during the disciplinary process as it is closely related to the disciplinary issues.
If the grievance is totally unrelated to the disciplinary issues, it will probably be appropriate for you to handle the two processes separately. If possible, you should have different people dealing with the two different processes. Of course for a small business, this can be very difficult to manage.
You have to let the employee know the information that you will be relying on when conducting the disciplinary hearing. This, therefore, means that you should send copies of all written evidence, including any witness statements, with the invitation letter.
The difficulties that can sometimes arise are when the person who has given the statement says that they want to remain anonymous or they do not want to be named. It is very important when you are taking witness statement that you advise the witness that their statement will form part of the investigation report/disciplinary papers and that you cannot guarantee their confidentiality.
If they insist that they need to remain anonymous, you need to understand from the witness what they are concerned about, whether their motives are genuine, and they are not holding a grudge. If you are of the view that their concerns are merited, you may have to provide a summary of their witness statement to try and anonymise this as far as possible.
A criminal conviction on its own does not necessarily justify disciplinary action and it would have to have some direct bearing on their job, their relationships with their colleagues and perhaps relationships with clients.
In these situations, colleagues may well gossip if they find out what has happened but just because other employees may not be happy with how someone has behaved, does not on its own justify disciplinary action.
Each case will need to be considered on its merits. Please be aware however that if the employee says that the police are taking action against them and they have been advised not to provide any information so as not to prejudice their defence to a police charge, this does not mean that you have to wait until the outcome of the criminal investigation.
You do need to provide written reasons for dismissal and in any event, this is advisable to do so that you have a written record of why an employee was dismissed.
This is not so crucial for employees with less than two years’ service but if you have any concerns about possible discrimination angle that the employee may follow, it is still advisable to set out the reasons for dismissal in writing.
Any suspension must be on full pay. If you withhold an employee’s pay, you run the risk of an unlawful deduction from wages claim and also it will be viewed as a sanction that you have imposed without actually investigating the matter.
Once an employee has resigned with immediate effect, their employment effectively terminates. In most cases, there is often little point in carrying on with the procedure for an employee who has resigned. You would also need to exercise caution if you carried on the process without the employee’s involvement and referred to this later on in any reference as arguably, it would not be a fair process /decision.
There may, however, be external reasons why you need to carry on with the disciplinary process. This could be required by a regulatory body or the allegations are so serious that they may need to be reported to the police. In the public sector, for example, if the allegation was one of fraud and/or dishonesty, then there is merit in carrying on with the investigations and disciplinary process as far as possible to show transparency.
Secret recordings will only be admissible as evidence with the express permission of the tribunal. The tribunal would need to consider such an application and then exercise its discretion as to whether or not the recording should be admitted and if it is relevant to the issues being litigated.
As matters currently stand, tribunals are increasingly allowing secret recordings to be used as evidence as long as the recording is submitted as a transcript to both the tribunal and the employer.