31st July 2018

Dealing with Disciplinaries – Possible Pathways

Numerous issues can arise during the course of disciplinary proceedings which are not necessarily catered for in policy documents. This article considers how to tackle these and maintain fairness in the process.

When to suspend:

If an allegation of misconduct arises, suspending the accused employee should not be the default response. Instead, you should consider:

• the seriousness of the alleged misconduct and whether the employee’s behaviour could justify summary dismissal;
• the risks of further problems if the employee is allowed to remain in the workplace; and
• the possibility of interference with the investigation if they are not excluded.

Setting the boundaries of HR’s involvement

Your human resources department can help the managers responsible for dealing with disciplinary issues by advising on the procedure that should be followed and to ensure consistency of approach by giving examples of disciplinary action taken in the past. However, care should be taken to ensure that human resources do not influence managers to reach particular findings or to impose particular sanctions.

The right to be accompanied

Workers have the right to bring a trade union official or a colleague as a companion to any disciplinary hearing or appeal. Failing to allow a worker to be accompanied could result in an employment tribunal ordering you to pay the worker two weeks’ capped pay. In the event of an unfair dismissal claim, any compensation award could be increased by up to 25 per cent.

Unless your disciplinary policy provides otherwise, employees cannot generally insist on bringing anyone else as a companion. However, if a disabled employee requests that someone else be allowed to accompany them, then you will need to think carefully about whether you should agree to this where it may be necessary to ensure compliance with your obligation to make reasonable adjustments.

Only in very rare circumstances will you have to allow a worker to be legally represented.

Two potentially guilty employees

Dismissing more than one employee suspected of serious misconduct may be fair where you cannot reasonably pin the blame on just one person. However, before moving to dismiss anyone you will need to be confident that the investigation you carried out was reasonable and so too was the way you acted to get to the point of identifying a group of potential suspects.

Employees raising a grievance

Although the raising of a grievance by an accused employee is often seen as an attempt to delay or derail the disciplinary process, you need to consider carefully what is being said.

A grievance may be:

• unconnected to the disciplinary proceedings, for example where an employee is accused of looking at pornographic material on a work computer and chooses to raise a grievance about a proposed change to their shift patterns; or
• about the disciplinary proceedings, for example where an employee alleges that they have been unfairly singled out for disciplinary action because their line manager wants to make an example of them.

An unconnected grievance can be dealt with separately under your grievance procedure without putting the disciplinary process on hold.

Most grievances about the disciplinary process itself can usually be incorporated into the disciplinary proceedings, typically as an issue to be explored in the investigation or as a point to be considered in mitigation.

Care needs to be taken to ensure that the process remains fair, for instance by ensuring that you do not ask an employee’s line manager to deal with a disciplinary matter concerning them where the employee alleges that their line manager is biased.

Occasionally it may be necessary to put the disciplinary process on hold and to look into the grievance first, for example where an employee alleges that disciplinary action is being taken in retaliation for them having ‘blown the whistle’ on illegal activity.

Relying on final written warnings

If you are disciplining an employee for persistent lateness and they already have a live final written warning on their file for shouting at a customer, you need to consider whether you can rely on the warning to dismiss them.  The answer will usually be ‘yes’ provided the warning is not worded too narrowly.

You may find yourself faced with an employee on a final written warning who has managed to behave themselves until just after the warning expires.  In this situation you cannot rely on the previous warning to justify dismissing the employee if their alleged misconduct on this occasion would not of itself justify dismissal.  You should, however, be able to dismiss an employee with a recently expired warning if the circumstances justify it and your knowledge of the warning simply means that you decide to take a hard line.

As we can see from the issues above, running a disciplinary process is not a simple task and is certainly not a flowchart exercise. Expert advice should be taken at the outset to ensure fairness is maintained and the business is protected.

As always, if you need help or advice with any aspect of Employment Law, contact us through the website or call us on 0845 459 1724 and we’ll be happy to help you.