I get lots of queries from clients about how to deal with staff who have done something wrong in the workplace (and, in some cases, outside of the workplace). The advice I give depends on the severity of what’s been done, and whether the employer was in any way complicit in what happened. For example, if an employee has been a good worker up until now, and they’ve had a falling out with the boss, it might be that it’s something that can be mended by good old-fashioned talking to each other, with or without the aid of a coach or mediator.
Sometimes, though, things are more serious and there is a need to investigate fully. It’s difficult to be prescriptive as to what falls into this category, employers need to check their own misconduct policy. A broad definition would be “unacceptable or improper behaviour.” When in doubt, take advice. And remember that the key to what you do is whether your behaviour, as an employer, is fair and reasonable. It’s probably reasonable to dismiss someone, after an investigation, for theft. It’s probably not reasonable to dismiss for being late for work once. When you have a case that is serious enough to be considered for a disciplinary process you need to carry out an investigation to establish the facts, and take the following into account:
1. There is no statutory disciplinary procedure, so be guided by the ACAS code of practice on disciplinary and grievance procedures. If your organisation’s policy does not include the steps contained therein, take advice on changing it.
The minimum steps an employer must take are:
To carry out an investigation to establish the facts – remembering, of course, that people see things from their own point of view. That doesn’t necessarily make one person right and another wrong, it just means that you have to ensure that you are thorough in what you do. The burden of proof in employment cases is “balance of probability.”
Inform the employee about what the problem is. It’s only fair for them to know what they are supposed to have done and you will probably fall foul of the law if you don’t.
Hold a meeting to allow the employee to put their case forward. Allow them to be accompanied to that meeting.
Give the employee the right to appeal the decision.
Disciplinary issues should be dealt with as quickly as reasonably possible and they should be dealt with in a consistent manner. By which I mean, you can’t show favouritism when dealing with things. Be aware that if two similar cases have very different outcomes, without any objective justification, you may find yourself open to a discrimination claim.
ACAS advises that, once it has been established that an investigation is necessary, the terms of reference should be established, what needs to be investigated, and what rules will be followed. An investigating officer should be appointed.
2. The investigating officer should not be connected to the circumstances giving rise to the disciplinary investigation. Nor should they, as far as possible, be involved in any subsequent hearing. This is not always easy in small organisations; there is a cost implication of hiring someone independent to carry out the investigation and small employers may not be able to afford it. If in any doubt at all, take advice from an HR Consultant or Employment Lawyer.
3. Ensure that the investigation is carried as soon as possible after the relevant event(s). An investigation will be required in most cases, even if it seems clear cut. The investigation officer should plan what questions need to be asked in advance of the interview.
4. Consider whether the employee should be suspended whilst the investigation is carried out. The fact that they will still be on full pay during throughout should not affect your decision. If the allegation is serious enough, you should suspend regardless. “Serious enough” depends on what your policy says, but it will usually include things like theft, assault, threatening behaviour, etc. If you do suspend an employee, you should ensure that they know that they may not enter your organisation’s premises without permission during the terms of their suspension. Check your policy to see what other restrictions may apply.
5. Arrange interviews with any witnesses to obtain their accounts and to take their statements.
6. It won’t always be necessary or relevant, but collect any documentation. For example, if the case relates to an employee’s performance, s/he may have letters of appreciation issued during the relevant period that might refute the claims made against them.
7. Prepare all the statements and relevant documents to go the decision maker who will decide whether a disciplinary hearing should go ahead. Copies of these will also need to go to the relevant employee if the case goes to discipline.
8. Check organisational policy to see whether the employee has the right to be accompanied at the hearing. Personal view: it should be in the policy, even there it is not a statutory requirement. Whatever the circumstances, discipline enquiries are daunting, and we are trying to be fair to people.
9. Remember, if your employee should decide to take you to an employment tribunal, all your paperwork, including the emails that you write to whoever is advising you, is disclosable. Do not write derogatory comments or anything that cannot be backed up by fact.