Over the years, I have had many clients raise their concerns on the nature of their suspension and the subsequent disciplinary procedure. Understandably, being suspended for an alleged misconduct offence is stressful and an unwelcome feeling. This blog aims to provide you with information on how a disciplinary procedure should be conducted fairly.
The Disciplinary Procedure
Most employers will have an internal disciplinary procedure which sets out the formal way they should address an employee’s unacceptable or improper behaviour or performance (capability). It will also set out examples of misconduct which usually include bullying, harassment, refusing to do work, unauthorised absence, etc.
Firstly, you should check to see if your employer has an internal disciplinary procedure and check to see whether they are following it. However, at the very least, your employer should adhere to the ACAS Code on Disciplinary and Grievance Procedures 2009 (“The Code”). The Code sets out practical advice on how to conduct a disciplinary investigation and an Employment Tribunal will expect to see an employer follow it in most cases.
The Code sets out six steps a reasonable employer should follow and I have set these out below for you.
Step 1 – Decide If There Needs To Be An Investigation
Firstly, your employer should ascertain whether a formal approach needs to be taken. If your employer can resolve the issue informally, this should be their approach. This could be achieved by speaking to you privately, listening to your point of view or setting up a training plan, if the issue relates to performance.
Step 2 – Follow A Fair Procedure
Sometimes, the employer may conclude that they cannot resolve the issue informally and that they need to start with the disciplinary procedure. If this is the case, your employer should let you know straightaway. This should be in writing, and it should include sufficient information about the allegation and the possible consequence, i.e. a written warning.
Step 3 – Conducting A Fair Investigation
The purpose of the investigation is to see if there is a case to answer by gathering evidence from all sides.
To carry out the investigation, your employer should appoint an appropriate investigator. The investigator should be impartial and not connected to the allegation and, ideally, an individual who has received training on how to conduct a disciplinary investigation. In some circumstances, it may also be beneficial to appoint an external investigator to take on the roll.
At the conclusion of the investigation, the investigator will provide their findings based on the evidence. The possible outcomes could be that there is no case to answer, in which case the disciplinary procedure comes to an end and no action is taken or, alternatively, that the matter should proceed to a disciplinary hearing.
Step 4 – The Disciplinary Hearing
If your employer decides to proceed to a disciplinary hearing, a new individual (who has not been connected to the allegation against you) should be appointed to chair the disciplinary hearing. You should also be written to, confirming the action, and the letter should include:-
- The alleged misconduct.
- Any evidence from the investigation should be enclosed.
- The date, time and location of the hearing.
- Your right to be accompanied at the hearing by a colleague or trade union representative.
- The possible outcomes.
The disciplinary hearing should take place as soon as possible but you should be given the opportunity to prepare for the hearing.
Step 5 – Decision On Disciplinary Outcome
It may be, at the end of the hearing, the employer gives you the outcome immediately. However, it is often advisable for the employer to carefully consider the outcome before communicating their decision. Therefore, it may be that the employer will write to you after the disciplinary hearing instead.
In any event, the outcome should be based on the findings from the investigations and meetings, it should be fair and reasonable, and the outcome should be consistent to how your employer has approached previous cases, like yours, at work.
Step 6 – Appeal
You should be given the opportunity to appeal against the outcome. For the majority of cases, appealing against the decision is very important to do (if you are unsatisfied), especially if the outcome was dismissal.
How Can I Help You?
I am a specialist Employment Law Solicitor who deals exclusively in employment law matters. I have specialised in Employment Law since 2009 and during this time I have represented numerous employees who are engaged in the disciplinary procedure.
I have become involved from various stages of the disciplinary procedure. Usually, I recommend prospective clients instruct me once they have sufficient information into the allegations but sometimes I may become involved at later stages, such as the appeal.
The benefit by having an Employment Solicitor advising you is to allow a qualified individual the opportunity to review the evidence and to provide you with a tailored assessment. It will also be helpful when you come to prepare, if a disciplinary hearing/disciplinary appeal hearing does take place, as attending with a disciplinary statement is always a good idea. I’ll be on hand to help you:-
- set out your case
- answer any allegations
- ask questions
- show evidence
- respond to any information given by witnesses
- highlight any concerns with the disciplinary investigation
- set out any mitigating factors, if appropriate
By ensuring you communicate everything relevant to your employer during the disciplinary procedure, it will help you if the worse case scenario of a dismissal takes place. Additionally, as I regularly represent clients in cases of Unfair Dismissal I have the benefit of knowing what points to raise and what issues to highlight to strengthen a (possible) future Unfair Dismissal Claim.
If you would like to speak with me for a free initial assessment, please give me a call on 01522 440512. You can also find out more by clicking this link:- Unfair Dismissal – LincsLaw Employment Law Solicitors – Based in Lincoln