EMPLOYMENT CHATTS WEEK 2: DISCIPLINARY PROCESS

In this month's mini-series we look at what should and should not be done by an employer when it comes to the disciplinary process.  It is important to be aware that if matters become contested and a claim is made to the Employment Tribunal, any compensation award can be increased by up to 25% if a fair procedure has not been followed. 

Today we cover some of the do's and don'ts of the investigation process.

Investigation

• DO ensure that an investigation is conducted before deciding whether a formal disciplinary meeting is required.
• DO suspend an employee pending an investigation if this is the best course of action and if there is a contractual right to do so.  For example, if the employer feels that the employee may discuss matters with witnesses or try to interfere with evidence, they may be suspended.
• DO ensure that the employee receives full pay whilst they are suspended.  Remember, suspending an employee is not a punishment.
• DO keep the investigation as thorough but as brief as possible and give the employee the name of a contact at the business who they can discuss matters with while suspended.
• DO appoint someone independent to conduct the investigation.  This may not always be possible in smaller businesses.
• DO act promptly in gathering evidence, before memories fade.
• DO keep a detailed record of everyone's version of events.  Take statements where possible and gather all evidence available to be able to make an informed decision.
• DON'T proceed straight to a disciplinary meeting without looking into the allegations first.
• DON'T pressure a witness into giving evidence if they are reluctant to do so.  Try and get to the bottom of why they are feeling that way and offer reassurance.
• DON'T feel obliged to anonymise witness statements at every request, as this means that the employee is not able to challenge what is being said and put their side across.

Investigation Meeting

• DO consider allowing an employee to be accompanied to an investigation meeting.  Whilst there is no statutory right to be accompanied at this meeting as there is no sanction, it does show good practice.
• DO follow the business' procedures and policies.
• DO decide who will be taking notes during the meeting and keep a written record.  It doesn't need to be an entire transcript of everything said, but should highlight the salient points. 
• DO obtain the consent of everyone involved if a remote meeting is going to be video recorded. 
• DO remind the employee why the meeting is taking place and confirm who everyone is and their roles. 
• DO allow the employee time to speak and provide their final comments.
• DON'T interrogate the employee or be confrontational.  Questioning should go on for no longer than necessary to get to the bottom of any issues. 
• DON'T allow the investigator to make recommendations as to sanctions.  Their involvement should be limited to confirming whether, in their opinion, further action is necessary; this could include no further action, informal action or formal action. 
• DON'T allow the investigator to be involved in the process again, save for discussing their findings or attending a formal disciplinary meeting in a fact-giving capacity.  This may be difficult in smaller businesses.   

Next week's article will look at the disciplinary meeting.

Contact us

Whether you are an employer or an employee in need of guidance, we are here to help.

Please do not hesitate to contact our friendly Employment Law team on 01205 351 114 or 01522 814 638.