Reports last month of several Civil Servants being dismissed following allegations of lewd behaviour at the Rural Payment Agency (RPA), and of a fireman being investigated for being filmed spinning in a tumble drier at a fire station, raised the issue of how best to deal with allegations of misconduct which many employees (possibly including those conducting the disciplinary hearing) might find amusing.
According to the RPA’s enquiry report, four staff were dismissed and five were disciplined amid allegations of “naked leaping from filing cabinets, sex in the toilets, drug taking at work [and] break dance competitions”. Whilst most companies will have experienced taking employees through disciplinary proceedings for behaviour for various more common misdemeanours (such as theft, failing to carry out reasonable instructions or poor time keeping), it can be more difficult disciplining staff where the misconduct is particularly embarrassing for the employee, or even the source of secret amusement or respect by managers.
Beginning the investigation
The employer must first check its contractual or handbook procedures to ensure that they comply with the statutory minimum procedures set out in the Employment Act 2002 (Dispute Resolution) Regulations 2004 and Schedule 2 to the Employment Act 2002, as 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.
Often, where allegations are embarrassing for the employee, they will be keen to get away from the office until the matter is resolved. Employers may have the right to suspend an employee during its investigation into the allegations, but only if this is expressly set out in the employee’s contract or the staff handbook. If there is no express right, the employer may be able to agree with the employee to suspension on full pay pending the outcome of the investigation.
Without the contractual right or employee’s consent, an employee could claim that any attempt to suspend them will be a breach of contract which is sufficiently fundamental that entitles them to treat themselves as constructively dismissed. The employee would then have possible claims against the employer for notice monies and compensation for unfair dismissal.
Notification of disciplinary hearing
Once the employer has completed the investigation, it should notify the employee as soon as possible of the outcome (i.e. whether or not it wishes to commence disciplinary proceedings). 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.
The need for confidentiality should be stressed, both from the employee’s and the companion’s point of view. Having the matter openly discussed in the workplace, among clients or even in the press will make it more difficult to show that a fair process has been followed. The letter 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.
Leaks to the press
Where the incident makes an entertaining story, it is more likely to be leaked – as with the fireman and the civil servants. This can be an added burden as employers try to follow a fair process. It is crucial that press attention does not influence the employer’s decision. There may be a temptation to rush through the process, or leap to conclusions, in an attempt to get rid of the unwelcome attention. Invariably, this is the worst approach as flaws creep in to the process which can be exploited by an aggrieved employee.
If possible, employees should investigate how the news was leaked and disciplinary action may be required where the leak was malevolent or reckless.
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. A representative from the employer as a note-taker is often useful. 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 follow reasonable instructions could render such reticent employees subject to disciplinary proceedings themselves.
Employers must ensure their decision satisfies the “range of reasonable responses” test. This could be quite difficult for employers to show where an employee’s behaviour is generally found to be amusing, if not irresponsible. However, employers must seek to stop those who commit unacceptable acts from becoming “office heroes”. Where an employee has been allowed to get away with such behaviour over a period of time with little more than a ticking-off, it can be almost impossible for employers to step up disciplinary action without causing unrest amongst other workers.
The employer’s 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.
As the appeal must be heard by a more senior manager, that person may know about the employee’s misconduct because it is common gossip amongst management. At an early stage, employers should attempt to keep senior managers untainted, and stress impartiality when dealing with the employee and the appeal. Employers must also check that manager hearing the appeal did not previously condone, or criticise, the employee’s conduct.
Must the employer report the incident?
Where the employee is alleged to have committed an act which is a criminal offence or in breach of regulatory requirements, the employer should consider whether or not it is obliged to report the matter to the police or relevant regulatory body. Usually, this will depend on the severity of the employee’s actions, who the regulatory body is, and whether it is in the public interest to do so. Urgent advice should be sought on the employer’s obligations in this regard. Employers must also note their obligations to potential employers when giving references in the future, and consider whether or not the employee’s behaviour is already in the public domain through leaks.
Can the matter be settled?
Of course, it may be possible to reach a settlement with the employee which will allow them to leave with their dignity in tact. Either party can commence ‘without prejudice’ settlement negotiations at any stage of the proceedings, but it may be best for the employer to do this at the end of, or preferably immediately after, the appeal meeting. This gives less of an impression of the process being a sham.
It is sensible for employers to consider what action can be taken to prevent, or make it less likely, that employees misbehave in such a way again. Employers should also look at their disciplinary procedures and rectify any defects – such as ensuring that there is a right to suspend an employee during disciplinary investigations, and making it clear that such behaviour can constitute gross misconduct. For example, the RPA enhanced its management procedures and policies, and issued letters and briefings to staff. Any reaction must be proportionate, as there is a risk of making a lesson out of an individual’s misdemeanour. For example, the fire brigade may look slightly ridiculous if they brought in a policy covering use of tumble driers.
No matter how serious the allegations made, employers must always investigate and hear the employee’s version of events before taking action in order to reduce the risk of an unfair dismissal claim. Once the process is over, employers should take stock and look at ways it can enhance and improve its procedures and policies.