As the statutory disciplinary and grievance procedures came into force on 1 October 2004, it is now more important than ever that employers conduct a thorough and fair investigation into allegations against an employee before deciding whether there is sufficient evidence against that employee to justify commencing formal disciplinary proceedings against him/her.
Failure to do so is likely to lead to any subsequent dismissal being automatically unfair and an uplift to the compensatory award of between 10% and 50%.
I set out below some tips to follow when investigating disciplinary matters to minimise as far as possible the risk of such potential exposure.
1. Act promptly – try to deal with problems early so that they can be ‘nipped in the bud’. Arrange to speak to the employee in question as soon as possible.
2. Gather the facts – act promptly to clarify what the problem is and gather information before memories fade, including anything the employee concerned has to say. Written statements should be obtained from relevant witnesses at the earliest opportunity. Keep detailed records of what is said during interviews with the witnesses, as copies will need to be given to the individual concerned if the matter progresses to a formal disciplinary meeting.
3. Obtain relevant personal details concerning previous performance, length of service and previously issued written or verbal warnings. Gather all appropriate records and documents including documents such as emails etc which may support or disprove the allegations.
4. Be as objective as possible, keep an open mind and do not pre-judge the situation.
5. Conduct enquiries and investigations with thought and care. Avoid snap decisions, or actions imposed in the heat of the moment.
6. Be consistent, ensure that management applies the same rules and considerations to each case – failure to do so may create unlawful discrimination issues for the future.
7. Managers involved in dealing with disciplinary matters should receive prior training.
8. Consider each case on its merits. Whilst it is important to be consistent, it is also essential to take account of the individual circumstances and people involved. Personal details such as length of service, past disciplinary history and current warnings will be relevant considerations. Any provocation or other mitigation also needs to be taken into account.
9. Any decision to discipline an employee must be reasonable in all the circumstances and must not discriminate on grounds of race, sex, disability, sexual orientation or religion or belief.
10. Consider a period of suspension with pay whilst the case is being investigated if there appears to be serious misconduct, a risk to property or other people. Suspension must be with pay unless the employment contract allows suspension without pay. Keep any period of suspension as short as possible. Inform the employee exactly why they are being suspended and tell them that they will be called to a disciplinary meeting as soon as possible. Do not use suspension as a sanction.
11. Once the manager or supervisor has gathered all the necessary facts as part of its investigatory process, it then needs to decide whether disciplinary action is necessary. There are 3 main options open to the manager/supervisor, which are:
a) Drop the matter, either because there is no case to answer or because the matter may be regarded as trivial; or
b) Arrange counselling/take informal action – this is an attempt to correct a situation and prevent it from getting worse without using the disciplinary procedure; (see further below) or
c) Arrange a disciplinary meeting if the matter is considered serious enough to warrant disciplinary action.
What is informal action and when it is appropriate?
In many cases, the right word at the right time and in the right way may be all that is needed to rectify a situation and is often a more satisfactory way of dealing with a breach of rules or unsatisfactory performance than a formal disciplinary meeting. Additional training, coaching and advice may be needed, and both manager and employee should be aware that formal processes will start if there is no improvement or if any improvement fails to be maintained. The employee should fully understand the outcome of the discussion and a note of any informal action should be kept on the employee’s personnel file.