Wrigleys’ Essential Employment Guide - The Disciplinary Process part 1

A guide to the disciplinary process

Part one – Initial steps in the disciplinary process

It is an unfortunate reality that all employers are likely to need to discipline a member of staff at some point. When they do, it is important that the individual is treated properly from the start and that the process is dealt with fairly and promptly. 

This guide to disciplinaries is designed to help employers navigate the process and deal with some of the more common issues that can arise. This guide is not a substitute for legal advice, which should be sought out if you have any concerns or are unsure of your process. Taking legal advice at an early stage when handling disciplinary concerns can help to avoid mis-steps in the process which could lead to successful employment tribunal claims.

Employers should always begin by reminding themselves of their own disciplinary policy and the ACAS Code of Practice on disciplinary and grievance procedures. If you haven’t already got your own disciplinary policy, subscribers to Wrigleys HR Response service have access to a template policy, if one is needed.

The investigation stage of a disciplinary is arguably the most important part to get right, not only to determine if a formal process is needed to decide the allegations, but to clarify exactly what the allegations are and the basis on which they are brought.

We refer to the person facing disciplinary action as the ‘employee’ in this guide, but this should be read to include all staff subject to an employer’s disciplinary policy.

1. Receiving a complaint or information regarding misconduct – can the matter be dealt with informally?

The first step in the disciplinary process is often the report of a complaint. This could be made by a member of staff, a client, customer, or some other source.

Depending on the nature of the complaint it might be possible to deal with it informally by a line manager having a chat with the employee. This should take the form of a verbal warning not to repeat the behaviour and a note can be put on the employee’s file to say a verbal warning was given. However, it is important to note that an informal verbal warning cannot be referred to when considering any sanction to be applied following a formal disciplinary process (see Part 2 of this guidance in respect of sanctions).

If there are repeated incidents of minor misconduct then it is possible for an employer to refer to informal verbal warnings, by reference to the employee’s file, to initiate a formal process.

2. Investigate the complaint

When an employer receives a report of misconduct which may require a formal process to deal with it, an investigation should be undertaken to establish facts and consider whether there is a case to answer. In most cases, it is appropriate for the line manager of the employee against whom a complaint has been raised to undertake the investigation.

Ordinarily the investigation stage is not considered to be part of the formal process, meaning an employee accused of wrongdoing does not have the statutory right to be accompanied to investigation meetings. However, you should check your organisation’s policy as this may include a right to have a companion in investigation meetings. It is important that an investigation be as prompt as possible and that there is no undue delay in concluding it.

The starting point of an investigation should ideally be with the complainant who has reported wrongdoing. It is important to get the key facts clear early on – what is alleged to have happened, by whom, when, where, and what evidence is there of wrongdoing and where can it be found?

Problem areas 1 – anonymous complaints and witnesses A witness or complainant might be reluctant to come forward and go on the record. This may be because they feel intimidated or fear that they will face repercussions. Efforts should be made to encourage witnesses of misconduct to go on the record as ultimately this provides the employee accused of wrongdoing a chance to properly address the evidence against them. Nonetheless, employers may be left in a difficult position if a witness decides they will not go on the record and their evidence is the only evidence of wrongdoing. Ultimately, investigators need to apply common sense when handling this type of situation. This may depend on the seriousness and type of allegation being made and whether, when weighing what evidence is available, the investigator considers it reasonable to have the employee respond to anonymous allegations as part of a formal process. In some cases, not knowing the identity of the witness can undermine the fairness of the process.

 

Evidence might take the form of documents, CCTV, witness testimony or something else and may require specialist skills and knowhow to acquire. Efforts should be made to gather all evidence, including any that indicates the allegations are not true or supports the employee’s defence.

A key witness to interview will be the employee against whom the allegations are made. In most cases it is preferable to speak to them last because it allows an investigator to put the evidence they have gathered to the employee and to note their version of events, their explanation of the context to the allegations and any defence.

Investigators may need to go back to witnesses several times to clarify or confirm any outstanding points. It is better to do this than leave issues unclear or unresolved because an investigator did not follow up issues arising during the investigation.  

Problem areas 2 – suspending an employee There are situations where employers are best advised to suspend an employee accused of misconduct. As a general rule employers should only consider this if there is a realistic chance that the employee poses a threat to other staff, customers or clients or a threat to the investigation itself because (for example) they may intimidate witnesses or tamper with evidence. Even then, employers should consider if anything can be done to avoid suspension as suspension without good reason might be in breach of contract. For example, if there is a risk of the employee intimidating or threatening others, is there any way the employee could be asked to work different shifts or from a different location to avoid this happening? Employers need to check what their contracts of employment and disciplinary policy say about suspension. Without an express written right to suspend the employee on pay, it will be difficult for the employer to do so without risking claims that they have breached the contract of employment. Finally, suspension needs to be handled sensitively and discreetly. Rightly or wrongly, questions arise and assumptions are often made when a member of staff is suspended and all staff involved in an investigation should be instructed not to discuss it with anyone else and treat it confidentially. Any suspension must be on full pay and last no longer than is necessary to allow the investigation to be completed or for as long as the issue creating the need to suspend continues. Employers should review suspensions regularly and communicate whether it has ceased or continues to the employee. Subscribers to Wrigleys HR Response service have access to a template suspension letter, if one is needed.

 

The investigator’s role is not to decide if the allegations are true, but rather to work out what exactly the allegations are on the facts (ideally by reference to the disciplinary policy), and whether there is enough evidence of wrongdoing to move to a formal disciplinary hearing.  

What the allegations are, and how serious they are, will often be apparent from the outset, but it is a good idea for employers to set out examples of conduct which will be found to be misconduct and gross misconduct in a disciplinary policy.

Subscribers to our Wrigleys HR Response service have access to a template disciplinary policy, if one is needed. See also Part 4 of this guide for more on disciplinary policies.

3. Investigation report

The investigator should create an investigation report following the conclusion of the investigation. The report should:

• Give an overview of what the initial complaint or concern was and its background

• Set out specifically what the allegations are (by reference to the disciplinary policy or relevant rules, policies or codes of conduct, if possible)

• Set out what evidence has been found in support of the allegations

• Set out what evidence directly contradicts or undermines the allegations (if any)

• Outline if there is a particular issue with any of the evidence or a lack of evidence regarding a specific aspect of the allegation

• State whether the investigator believes there is a case to answer or not in respect of the allegations identified

The investigation report should be provided to the employer’s nominated disciplinary hearing manager so that they can review it and, if appropriate, take the next steps by organising a formal disciplinary hearing at which the allegations will be determined.

Please see Part 2 of our Essential Employment Guide to Disciplinaries for guidance on conducting a formal disciplinary hearing. 

If you would like to discuss any aspect of this article further, please contact Michael Crowther or any of the employment team on 0113 244 6100. You can also keep up to date by following Wrigleys employment team on X. The information in this article is necessarily of a general nature. The law stated is correct at the date (stated above) this article was first posted to our website. Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors.