Initially the remit of this article was to look at some of the tricky issues that can arise when conducting a disciplinary and dismissal procedure however over the past number of months we have seen some howlers by employers. Therefore, we thought it would be worthwhile to go back to basics and provide a note explaining how to carry out a disciplinary procedure in a fair and thorough manner with a follow up article coming next week looking at some of the common problems that can arise for employers.
The first thing worth noting is that the internet can be a dangerous thing for employers in Northern Ireland. Whilst the statutory disciplinary and dismissal procedures were repealed in Great Britain and replaced by the ACAS Code of Practice the statutory procedures are still in force in Northern Ireland as per Schedule 1 of the Employment (Northern Ireland) Order 2003. Before commencing a disciplinary hearing an employer should consult this piece of legislation https://www.legislation.gov.uk/nisi/2003/2902/schedule/1/made and ensure that as a minimum the 3 step procedure is followed.
When considering an unfair dismissal claim an Employment Tribunal will go through two stages. Firstly the employer must establish the principle reason for the dismissal and demonstrate that it falls within one of the categories of potential fair reasons in section 130(2) of the Employment Rights (Northern Ireland) Order 1996 specifically capability, qualifications, conduct, redundancy, breach of statutory duty or restriction, or some other substantial reason. Secondly, the employer must then show that in the circumstances the employer acted reasonably in treating the given reason as sufficient to justify dismissal. Over time this has been interpreted by the Tribunal as a requirement that an employer adopt a fair procedure before taking the decision to dismiss.
Before commencing any procedure an employer should consider whether a formal procedure is even necessary. Informal resolution should be encouraged where appropriate as a quiet word may often be all that all is required to resolve an issue such as timekeeping, absence or excessive breaks. This can often be a better way of dealing with a problem rather than launching straight into an investigation and formal disciplinary action.When the employer learns of matters which may constitute gross misconduct, it should make a decision quite promptly whether to take matters further and should communicate its intentions to the employee. If the employer delays and does nothing to indicate to the employee that it’s considering its position it may be taken to have affirmed the contract and be precluded from accepting the employee’s repudiatory breach as grounds for summary term
ination.
The requirement for an investigation to take place prior to any disciplinary action is critical for an employer to ensure it complies with the principle of fairness. It may be the case during an investigation that perfectly plausible explanations emerge therefore it is of vital importance that even in the case of apparently obvious guilt employers investigate rather than launch straight into a disciplinary hearing or worse go straight to dismissal. The amount of investigation required will vary depending on the individual circumstances of the case. What the employer must ensure is that the relevant facts have been established so that the employer’s case can be put to the employee in a matter which makes it clear the misconduct being alleged.
The legal test is that an employer must hold such investigation as is “reasonable in all the circumstances” judged objectively by reference to the band of reasonable responses. Whilst it is difficult to give a hard and fast guideline as to what this means in practice, an employer will need to investigate sufficiently to ensure that the substance of the allegations are clear, in order that these can be put to the employee with sufficient detail to enable a meaningful response. Where the allegations against the employee amount to criminal behaviour, they must always be subject to the most careful investigations.
Employers need to be aware of the distinction between an investigation and any subsequent disciplinary hearings. For example, if an employee admits guilt during any investigative interview this is likely to shape the investigation the employer then follows but it will not remove the need for a further disciplinary meeting. At the end of the investigation the person who made the decision to appoint the investigating officer should decide what the next step should be. In most cases, the person carrying out the investigation is effectively a witness in the disciplinary hearing, and so it is better if the disciplinary hearing is not carried out by the person who conducted the investigation. However, this may not be possible in all cases particularly were the employer is small. Employees have no statutory right to be accompanied at any investigatory meeting although a contractual disciplinary procedure may give them such a right.
An employer needs to consider the appropriate personnel to conduct the investigation and any subsequent disciplinary and appeal hearing. In most cases, the employee’s immediate line manager will be the appropriate person however this may not always be the case. Sometimes the employer’s own procedure (which may be contractual) stipulates who is to conduct an investigation. The alternative is to appoint a member of the Human Resources Department to conduct the investigation, since they may have had relevant training. In other cases someone with specialist knowledge may be needed, for example, a finance manager, if the allegations concern financial mismanagement. The employer will also need to consider who will conduct the disciplinary hearing and appeal hearing, if necessary. The LRA code recommends that this should not be the person who has conducted the investigation as it should be someone who is not also a key witness. A disciplinary procedure is not a judicial enquiry and a breach of the principles of natural justice does not, of itself, form an independent ground for a finding of unfair dismissal, although clearly the tribunal will take this into account when considering the overall fairness of the procedure.
All too often employers suspend employees who are accused of misconduct as a matter of course without actually considering if suspension is absolutely necessary. Suspension is a serious step and thought needs to be given as to whether it can be avoided. Suspension may be appropriate where there is a potential threat to the business or other employees or where it may not be possible to properly investigate the allegation if an employee remains at work. If an employee is to be suspended they should be informed as soon as possible and the decision confirmed in writing. A period of suspension should be as short as possible and should be kept under review. By failing to consider whether a suspension can be avoided an employer runs the risk of breaching the duty of mutual trust and confidence. In the case of Camden and Islington Mental Health & Social Care Trust UKEAT/0058/07 the EAT upheld a decision that an employee had been constructively dismissed because her employer had failed to review her period of suspension and lift the suspension at the appropriate time.
Any investigation should be undertaken as quickly as possible and without unreasonable delay. Witnesses should be spoken to before memories fade and it may be necessary to obtain physical evidence such as emails, mobile phones or CCTV. 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 trust and confidence. The evidence of witnesses is often crucial to the investigation, particularly in the case of misconduct. Witnesses should be interviewed privately and the need for confidentiality should be emphasized. Notes should be taken of the statement provided and where possible signed by the witness.
Once the investigation is complete, if the employer decides formal disciplinary action is required, it should write to the employee to confirm the outcome of the investigation and invite them to a disciplinary hearing. The letter should give sufficient information about the allegations and their possible consequences to enable the employee to prepare their case for the disciplinary hearing. It is advisable to hand deliver the letter, use a courier, registered post and/or email to prevent any allegation that the letter has not been received.
The disciplinary hearing should be convened at a reasonable time and place, within working hours and consideration given to its location. An employee should be given sufficient time to consider the allegations and should normally be provided with copies of all documents or evidence on which the employer intends to rely, together with the names of witness who will attend. The employee should also be asked if there are any witnesses they intend to call or additional documents that they intend to rely on. The employee should be sent a copy of the employer’s disciplinary procedure and advised of their right to be accompanied by a colleague or a trade union representative.
It is a principle of natural justice that an accused person be informed of the charges against them so that they have an opportunity to put across their side of the story. It is often helpful if the investigating officer prepares a report summarising the steps taken in the investigation, the allegations, and the evidence available in respect of them. It is important to make sure the employee appreciates the severity of the allegations and the possible consequences. An employee should not be expected to work this out for themselves. In particular, an employee who is at risk of dismissal must be told of this in advance of the hearing, otherwise any dismissal may be unfair.
The charge against the employee should be precisely framed and if the employee is found guilty it should be of only the charge put to him. In other words, employers should not accuse employees of one thing and dismiss for another reason.
Employees often seek to postpone disciplinary hearings either through illness, their desire for more time to consider their position or because of unavailability of their chosen companion. If this is the case it is good practice for the employer to re-arrange the meeting to an alternative date in order to give the employee a further chance to attend. 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 continually fails to attend without good reason a decision can in some cases be taken in an employee’s absence.
When conducting a disciplinary hearing:
- At the start of the hearing, the chair should introduce those present and if the employee is unaccompanied, remind the employee of their right to be accompanied;
- The employee should be asked to confirm that they have received the applicable disciplinary procedure and copies of any documentation. Any minute or note-taking arrangements should be discussed and confirmed;
- A final check should be made as to whether any reasonable adjustments are required although ideally this should have been resolved prior to any meeting;
- The allegations should be explained in some detail and go through the evidence that the employer is relying on in support of those allegations;
- The employee, and any companion, should be invited to ask any questions;
- The employee should be given a reasonable opportunity to present their version of events and produce any evidence in support, including calling any witnesses if they have given advance notice of their intention to do so; and
- Once the employee has presented their case, the employer should summarise the information put forward by both parties.
Once both sides of the case have been presented the hearing should be adjourned. Issues that have been raised may require further investigation and witnesses may need to be re-interviewed. Any new evidence should be given in writing to the employee and the employee given the opportunity to attend a re-convened meeting. The length of the adjournment depends on the complexity of matters and even if the employer knows what sanction it wishes to impose it is better to adjourn as announcing a decision straight after the meeting would suggest that the outcome has been pre-determined and that the employee has not been treated fairly or reasonably.An employer may conduct the disciplinary procedure fairly and reasonably however, if it is considering dismissal it must also ensure that it has a genuine belief, based on reasonable grounds, that the employee is guilty of misconduct and that any decision to dismiss is fair and reasonable in all the circumstances.It is important that any punishment is proportionate to the offence so as not to breach the duty of trust and confidence. When deciding the appropriate penalty employers can take into account any live warnings but may only take into account expired warnings where this is not the principal reason for any subsequent dismissal. If considering dismissal, the employer should ensure that it has thought about whether there are any other alternatives to dismissal such as demotion, redeployment, demotion or final written warning. Whilst taking such steps without a contractual right may breach trust and confidence, the employer may nevertheless decide to present it to the employee as an alternative to dismissal which the employee may consent to.The employee must be informed in writing, without unreasonable delay of the employer’s decision and their right of appeal. Any letter confirming the decision to dismiss should:
- Clearly set out the allegations against the employee, the findings, the factual basis and the reasons the employer has reached the decision to dismiss;
- Refer to any previous warnings;
- Confirm the employee’s termination date and whether their employment is terminated with or without notice, any garden leave arrangements, whether a payment in lieu of notice will be made or whether the employer considers that there is no notice entitlement because the employee has been dismissed for gross misconduct;
- Confirm the employee’s pro-rata holiday entitlement up to the termination date and whether the employee is entitled to a payment in lieu of accrued but untaken holiday;
- Provide instructions on how to appeal, including who the appeal should be forwarded to and the deadline for doing so.
The right of appeal is enshrined in section 2(4) of Schedule 1 of the Employment (Northern Ireland) Order 2003. Employers should always consider the surrounding circumstances when considering whether to accept an appeal out of time. So far as is possible the appeal should be dealt with by someone who has not been part of the process and who is more senior than the person who conducted the disciplinary hearing.The employee should be asked to state their full grounds of appeal so that a decision can be taken whether the appeal will be a review of the decision and evidence of the original hearing or whether it will be full rehearing. The chair of the appeal should have access to all of the evidence from the original hearing but should not confer with the original decision makers prior to the hearing.It is possible that procedural defects in an initial disciplinary hearing may be remedied on appeal, provided that the appeal is sufficiently comprehensive. Ultimately what is important is that the procedure was fair overall. Once the appeal decision is made the employee should be informed whether the decision to dismiss has been upheld and if so that the process is complete and that they have no further right of appeal.We hope that this provides a basic guide to conducting a disciplinary process in a fair and reasonable manner. Our next article will look at some tricky areas such as employees in long term sick, criminal investigations, legal representations and reluctant witnesses.
McCay Solicitors are offering a complimentary Disciplinary Policy, if you would like to receive a policy drop us an email to gareth@mccaysolicitors.co.uk. 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.