(1) Act swiftly – try to deal with problems early to avoid matters escalating. Arrange to speak to the employee in question, as soon as possible. Information should be gathered before memories start to fade, including anything the employee concerned may have to say. Detailed records should be kept of what witnesses say during interviews, and it may also prove worthwhile to get written statements from relevant witnesses.
(2) Be as objective as possible, keep an open mind and do not pre-judge the situation. Enquiries and investigations should be conducted with due care and attention. Avoid acting in the heat of the moment and making rash decisions.
(3) Training – Managers involved in dealing with disciplinary matters should receive prior training and should ensure that any decision made to discipline an employee is reasonable in all the circumstances. Decision-making should not be discriminatory on the grounds of race, sex, disability, age, sexual orientation or religion or belief.
(4) Be consistent – Ensure that management applies the same rules and considerations to each case as failure to do so may create unlawful discrimination issues for the future. Any contractual or handbook procedures on disciplinary proceedings should be followed to ensure that all employees are treated uniformly. The disciplinary procedures in place should comply with the statutory minimum procedures, as set out in the Employment Act 2002 (Dispute Resolution) Regulations 2004 and Schedule 2 to the Employment Act 2002. Failure to follow a fair procedure when investigating and dealing with employees could render any dismissal automatically unfair, and gives the Employment Tribunal the discretion to increase any award of compensation by between 10 and 50 per cent.
(5) 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 information such as length of service, past disciplinary history and current warnings will be relevant considerations. Provocation or any other mitigating factors may also need to be taken into account.
(6) If considering suspending an employee, ensure that you have the right to do so i.e. it is either expressly set out in the employee’s contract or in the staff handbook. If there is no express right, you may be able to agree with the employee to suspension on full pay pending the outcome of the investigation. Without the contractual right or the employee’s consent, an employee could claim that any attempt to suspend him/her will be a fundamental breach of contract therefore entitling him/her to treat himself/herself as constructively dismissed. The employee would then have possible claims against the employer for notice monies and compensation for unfair dismissal.
(7) Once the manager or supervisor leading the investigation has gathered all the necessary facts as part of its investigatory process, it then needs to decide whether disciplinary action is necessary. It should notify the employee in writing of the allegations made and provide the employee with copies of any documents on which it intends to rely in the hearing, if deemed necessary.
(8) The letter inviting the employee to the disciplinary hearing should warn the employee that disciplinary sanctions may follow, up to and including dismissal. If there may be grounds to dismiss summarily for gross misconduct, the employee should be notified of this. The employee should also be notified of their statutory right to be accompanied to the hearing by a companion who falls within one of the statutory categories. The need for confidentiality should be stressed, both from the employee’s point of view and that of his/her companion.
(9) At the hearing, the companion is entitled to take notes and ask questions but they are not entitled to answer questions on the employee’s behalf. Make sure that someone (from the employer) acts as a note-taker, as a contemporaneous record of the meeting will be extremely useful. A copy of these notes may be supplied to the employee following the meeting to ensure that both parties agree with what was discussed. The employee should be given a full opportunity to state their case and respond to the allegations, and their comments should be taken into account when making a decision on the allegations. It may be necessary for the employer to suspend the meeting and investigate further before giving its decision on the disciplinary. Other employees may be reluctant to be witnesses, although failure to attend could amount to a failure to follow lawful instructions, thereby rendering such reticent employees subject to disciplinary proceedings themselves.
(10) Employers must ensure their decision satisfies the “range of reasonable responses” test i.e. that a reasonable employer would have acted in a similar manner. The decision must be confirmed in writing, and the employee must be notified of their right to appeal in order to comply with statutory minimum requirements.
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