Ok, so we did the Conducting a Disciplinary Procedure – Back to Basics article back in November with the trickier aspects to follow but we have been exceptionally busy over the past few months so we are only getting an opportunity to add the second instalment now. We have looked at 6 areas namely confidentiality, surveillance, witness anonymity, failure to attend, stress-related illness and criminal investigations.
Confidentiality
Before commencing any disciplinary investigation the employer should always bear in mind the importance of keeping the investigation confidential. Consideration should be given as to whether fellow employees interviewed as witnesses need to be told the name of the employee being investigated. In any event, witnesses should be advised not to discuss the investigation with other employees or third parties and reminded of their duty of confidentiality. If an employee breaches confidentiality, an employer should consider whether the breach is sufficiently serious to warrant disciplinary action.
There is no set rule on whether an employer has a duty of confidentiality to witnesses providing information in disciplinary investigations. In Shinwari v Vue Entertainment Ltd UKEAT/0394/14, the EAT considered whether an employer should have disclosed the witness’s identity to the employee being investigated. The witness subsequently received threats from the employee and complained that the employer owed him, and had breached, a duty of confidentiality. On the facts, the EAT found that the employer did not give any assurance of confidentiality and was permitted to disclose the witness’s identity.
Covert surveillance
In cases involving sickness, care should be taken with respect to any evidence gathered as a result of recording an employee’s activity, such as surveillance film. Such evidence can be relevant, but it may only be useful if it has been assessed by a medical professional with appropriate qualifications. A failure to do so is likely to render the investigation unreasonable.
There is a clear balance to be struck between the employer’s need to gather information for the investigation and the employee’s right to be treated fairly and reasonably so that there is no breach of the implied term of mutual trust and confidence. An employer should be careful therefore not to use the investigation as an excuse to undertake a “fishing expedition” and should therefore avoid reading material that is obviously personal such as private e-mails and diary entries.
Reluctant witnesses and Anonymity
A common problem faced by employers is that of the reluctant witness or the witness who will only provide information if they are given an assurance of anonymity. The employer should try to establish the reason for any reluctance and, if the witness is an employee, then they should be reminded of the obligation of good faith or fidelity owed towards the employer. However, while it may be possible to establish an implied obligation for senior managers to report on another employee’s misconduct, it is unlikely, in the absence of an express obligation, that a junior employee would be legally obliged to inform on a colleague.
With a request for anonymity the reason for the request and the motives of the informant needs to be explored. If a tribunal is asked to rule on whether a subsequent dismissal was fair, it must consider whether the employer’s investigation was within the band of reasonableness. In doing so it should investigate why there was a need for anonymity and carry out a balancing act between that perceived need and the employee’s need to know details of the case against him. In a small workplace, or in instances where the witness is genuinely in fear of physical violence, various steps can be taken to protect the witnesses’ identity. The reality is, however, no guarantee of complete confidentiality to the witness can be given. There may always be a risk that subsequent criminal or civil (including employment tribunal) proceedings are issued and the accused employee will seek disclosure of the witness statements or notes of interview, which will identify the witness.
In ordinary disciplinary proceedings, witnesses’ anonymity may be protected. It is not necessary as a matter of course for the employee to know the identity of witnesses. What is important is that the employee knows the case they have to answer. It is therefore permissible for an employer to ensure that nothing is disclosed which could identify the maker of the statement. This could include deleting any references in the body of the statement which may lead to identification of the source in addition to their actual name. Even in employment tribunal proceedings the tribunal may permit an employer to disclose statements in an anonymised or redacted form to protect the identity of the witness.
In Linfood Cash & Carry Limited v Thompson [1989] IRLR 235 the EAT gave guidance to assist employers and tribunals to balance the need for a fair hearing with the protection of witnesses and informants:
- The information given by the informant should be put in writing in one or more statements. Although the employer may need to erase certain parts before showing the statement to others, the statements should initially be taken without regard to that fact.
- When taking witness statements consider; (i) The date, time and place of observations and incidents; (ii) The witness’s opportunity and ability to observe the incident clearly and with accuracy; (iii) Circumstantial evidence such as the person’s knowledge of working arrangements, reasons for being present and viewing the incident, why he remembers certain small details; (iv) Whether the witness has suffered at the hands of the accused or has any other reason to fabricate evidence.
- Corroboration of witness evidence is desirable. Once witness statements have been taken, further investigation may be required to verify or undermine the information given.
- It may be appropriate to make tactful enquiries into the character and background of the witness, and in relation to any other information which may add to or detract from the value of their evidence.
- If the witness is genuinely in fear of their identity being disclosed to the employee accused of misconduct, and as a result is not prepared to attend a disciplinary hearing, the employer will need to decide whether or not to continue with the disciplinary process.
- If a decision is taken to continue, those conducting the hearing should interview the witness themselves, and satisfy themselves as to the weight to be given to the witness’s evidence.
- Witness statements should be made available to the employee accused of the misconduct and his representative, if necessary, with appropriate omissions so as to avoid identification of the witness.
- If the individual accused of the misconduct, or his representatives, raise issues which need to be put to the witness, an adjournment may be desirable so that the chairman can make those enquiries.
- Full and careful notes should be taken at the hearing.
- If evidence is to be taken from an investigating officer at the hearing, it should be prepared in written form.
Failure to Attend
Employees should make every effort to attend a disciplinary hearing. However, employees often seek to postpone disciplinary hearings, either through their desire to have more time to consider their position or as a result of illness or non-availability of themselves or their chosen companion. Employers should be wary of proceeding with the meeting in the employee’s absence, unless there is a compelling reason to do so however if the employee persistently seeks to postpone the rearranged meeting or simply fails to attend without good reason, a decision can in some cases be taken in the employee’s absence. However, this may not always be sufficient to ensure a fair dismissal, particularly if a tribunal considers that a hearing with the employee present may have resulted in a different decision.
Ill-health and stress
A common problem for employers is that of the employee who, on being told to attend a disciplinary hearing, absents themselves
by reason of ill health, frequently citing stress as the cause. The employer then has two conflicting priorities. On the one hand, there is a need to ensure that matters are dealt with speedily, particularly if it is a serious case in which other employees’ interests are involved. On the other hand, the employee may genuinely not be well enough to attend a hearing. One issue that should be considered at this stage is could stress, anxiety ordepression actually have caused or contributed to the misconduct? This may be more likely where it is capability rather than misconduct which is the subject matter of the hearing. 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 disciplinary hearing and, if not, when they are likely to be. Where the employment contract provides for an employee’s consent to medical examination, failure to consent may constitute misconduct but is unlikely on its own to constitute grounds for dismissal.
Fit to attend? The role of occupational health
Unless the employer feels the problem will resolve itself in a couple of weeks, they may be well advised to consult an occupational health physician (OHP) with a view to obtaining a medical report. OHPs are likely to recommend a postponement to disciplinary proceedings if the patient has severe depression (especially if there is a risk of suicide), or has only recently started taking anti-depressants, or if any of the following criteria are not met.
– Does the employee have the ability to understand the allegations made against them?
– Does the employee have the ability to distinguish right from wrong?
– Is the employee able to instruct a friend or representative to represent their interests?
– Does the employee have the ability to understand and follow the proceedings, if necessary with extra time and a written explanation?
In most other cases, the OHP is likely to recommend going ahead, although they may recommend adjustments. They may explain to the employee that seeking to prolong the process by postponing the hearing is not without its own mental health risks. This may have the effect of persuading the employee to attend the hearing. If not, there is no way to compel their attendance and the employer may have to proceed by some other means.
Holding a hearing in the employee’s absence
The employer may decide that the matter can wait, but should ensure that matters are not allowed to drag on if the predicted return date is constantly being extended. Sometimes, in stress-related cases, employees or their GPs will assert that no return to the workplace is possible while disciplinary proceedings are “hanging over their head”. In this case it is worth emphasising that fitness to work and fitness to attend disciplinary hearings are not the same thing, and to seek the involvement of an OHP if this has not been done already. In a minor case, it may decide simply to let matters drop in the interests of rehabilitating the employee as soon as possible. However, if the matter is more serious, the employer may simply have to find alternative means of proceeding. Consideration can be given to alternative ways of conducting the disciplinary hearing, such as by telephone, at a neutral place or location nearer the employee’s home address, or even inviting the employee to submit written submissions and holding a hearing in their absence. Ultimately, unless alternative arrangements can be reached, the need for a timely resolution may compel the employer to hold a disciplinary hearing in the employee’s absence and make a decision on the basis of all the evidence available.
Matters involving the police and criminal proceedings
A police investigation, criminal charge or conviction related to off-duty conduct is not necessarily a reason for disciplinary action in itself, if the matter has no bearing on the employee’s suitability for the job or their relationship with their colleagues, the employer or its customers. Where the matter has a bearing on employment (particularly where it relates to conduct at work), the employer may wish to question the employee as part of an investigation or disciplinary hearing. The employee may refuse to respond to questions, often on legal advice, on the basis that questions could prejudice a pending trial or interview. The employer should permit the employee to have an opportunity to make any statement he may wish to volunteer and this should ideally be when he has had time to consider his position. What an employer should not do is interrogate the employee or seek to pressurise the employee into making any admissions of guilt.
Employers will not usually wish to wait for the outcome of criminal proceedings before conducting the disciplinary hearing, particularly when the employee has been suspended on full pay, as this will usually take several months. Furthermore, the LRA Code requires the employer to hold any disciplinary hearing without unreasonable delay, which would suggest that it should not wait for the conclusion of court proceedings. The EAT considered the previous authorities and gave guidance on the issue in Ali v Sovereign Buses (London) Ltd UKEAT/0274/06 and indicated that the following factors may be relevant when there are concurrent disciplinary and criminal charges:
- It might be impractical for an employer to wait, if a criminal case takes many months to come to court, before making a decision as to the future of the employee so far as their employment is concerned.
- The size of the employer’s business, the nature of the business and the number of employees. Tribunals recognise that employers, particularly small employers, may be placed in a dilemma when criminal charges are brought against an employee in circumstances relating to his employment.
- Any provision made in the terms of the employee’s employment, including the employer’s disciplinary code.
- There is no rule that, once an employee has been charged with a criminal offence, an employer cannot dismiss him if the employee is advised to say nothing until the trial.
- An employer must offer the employee the opportunity to give an explanation and, if the employer is contemplating dismissal, this must be made clear to the employee.
- Where the employer only learns of a problem when the police advise that they are bringing charges against an employee, the employer should still undertake an investigation. The employee should be given the opportunity to state their position, even if they don’t take that opportunity and the investigation and interview are fruitless
- In extreme cases, the circumstances may be so blatant (for example, where an employee has been caught “red-handed”, arrested and charged) and sufficiently brought to the attention of the employer without the need for further investigation.
However, in Secretary of State for Justice v Mansfield UKEAT 0539/09/2403 the EAT held that it may be appropriate to adjourn a disciplinary investigation while the Police investigate and prosecute the employee for the same offence.
Level of investigation into criminal allegations.
Only if the employee refuses to cooperate should the employer proceed to take a decision on the available evidence, having first warned the employee in writing that this is what they intend to do. The test as to whether the employer has adequately investigated before dismissing an employee is the same whether or not the police are involved. The employer must have a reasonable belief in the employee’s guilt, based on a reasonable investigation, and the level of investigation carried out must have been within the “band of reasonable responses”. Where the charges against the employee are of a criminal nature and the potential effects of a finding of guilt are potentially grave (such as an effective end to the employee’s chosen career), the investigation must be “careful and conscientious” and must also be balanced.
Is the employer entitled to rely on Police investigations?
Employers should carry out their own investigation and disciplinary hearing and should not ask the police to do so on their behalf. However, if a police investigation uncovers wrongdoing by the employee, the employer may rely on the information supplied by the police when conducting its disciplinary process. In Harding v Hampshire County Council UKEAT/0672/04, a case in which a youth worker was investigated by the police for possible indecency with children and accessing pornographic material, the employer conducted a reasonable investigation when it relied on the findings of a police investigation rather than conduct an inquiry from scratch into the allegations. In most cases however, the employer should not rely solely on the outcome of a police investigation.
McCay Solicitors are Employment Law specialists, should you wish to speak to McCay Solicitors regarding this article or any other legal matter please contact by telephone on 02871371705, email gareth@mccaysolicitors.co.uk or visit our website at www.mccaysolicitors.co.uk.
This article does not constitute legal advice and McCay Solicitors accept no liability for its content.
McCay Solicitors are offering 11 Policies drafted by one of the UK’s top employment law barristers for £199 plus VAT, if you would like to receive the policies or get more information drop us an email to Gareth@mccaysolicitors.co.uk.