November 2015: Businesses will welcome helpful guidelines provided by the Employment Appeal Tribunal (EAT) on how much involvement and influence HR should have in disciplinary investigations. What is crucial is that HR limits advice to questions of law, procedure and process, and avoids straying into areas of culpability. In particular, HR should not advise on what an appropriate sanction should be, outside of addressing issues of consistency. Significant influence by HR in the outcome of an investigation could potentially compromise the fairness of the investigation process and result in an unfair dismissal.

In this case, the EAT allowed an appeal against the decision of an employment judge that an employee had been fairly dismissed in circumstances where the investigating officer’s recommendations had been heavily influenced by input from HR. The investigating officer’s report originally recommended a finding of misconduct and a sanction of a written warning, but after numerous comments and amendments by HR, the final report found the employee to have committed gross misconduct, and recommended immediate dismissal.

October 2015: Earlier this year, Acas amended its non-statutory guidance to make it clear that businesses can allow workers to be accompanied to a disciplinary hearing by companions who are not trade union representatives or work colleagues. It did not amend the Code as it did not wish to create a burden on employers, but clearly employers will always be in a position to exercise their discretion when deciding who to allow as a companion.

The High Court has recently held that a university’s refusal to allow a representative of a professional defence organisation to accompany an employee at an investigation meeting concerning serious allegations of misconduct was unfair and a breach of the implied term of trust and confidence. Employers should be aware of the potential seriousness of allowing employees to attend hearings unaccompanied, especially where the stakes are high and the matters under discussion are complex or technical.

August 2015: An employment tribunal has held that the summary dismissal of a healthcare assistant for coming to work smelling of alcohol was unfair. A reasonable employer would not have treated attending for work smelling of alcohol as gross misconduct or conduct justifying dismissal in the absence of either evidence of an adverse effect on the employee’s ability to do his job, or in the absence of a previous warning given under the employer’s disciplinary policy not to do so.

This case illustrates the need for an employer in this type of situation to ensure that it follows its procedures and keeps the disciplinary process under review. ideally an employer will have a substance misuse policy which sets out an employer’s approach to alcohol and drug abuse at work.

November 2014: A Court of Appeal decision illustrates the need for businesses to undertake thorough investigations into disciplinary allegations. The court held that an employer did not breach its duty of care to an employee by bringing disciplinary proceedings against her. It had been alleged that the employee had been complicit with a colleague in the preparation of false and misleading references which he then used to obtain new employment.

It is important for an employer to clearly define such allegations at the outset of an investigation. The investigation should involve searching for relevant contemporaneous evidence and speaking to each relevant witness before putting the allegations to the individual who is the subject of the allegation. The subject needs to have a clear understanding of what the allegations are and the 1. investigator should be careful to ensure that any issues that arise as a result of an interview are followed up before a decision on the pursuit of disciplinary proceedings is made.

This business briefing highlights the key issues a business should consider when conducting a disciplinary procedure connected with misconduct or poor performance.

The Acas Code of Practice (Acas Code) was introduced in 2009 to replace the statutory disciplinary procedures. Employers are required to follow the code in disciplinary situations.

Why is it important to follow the Acas Code? It can avoid a finding of unfair dismissal. The Acas Code was introduced to help businesses and employees deal effectively with issues of alleged misconduct or poor performance. When deciding whether an employee has been unfairly dismissed for misconduct or poor performance, an employment tribunal will consider whether the business has followed a fair procedure. It must also take the Acas Code into account when considering whether an employer has acted reasonably or not.

It can affect the level of compensation: If an employee’s claim is successful, but either the business or the employee has failed to follow the Acas Code, the level of compensation awarded can be affected:

  • If the business unreasonably failed to follow the Code, the employment tribunal may increase the employee’s compensation by up to 25%
  • If the employee unreasonably failed to follow the Code, the employment tribunal may reduce their compensation by up to 25%

How should misconduct or poor performance be handled?

Investigate the issues: The business must carry out a reasonable investigation of the issue (for example, by conducting an investigatory meeting with the employee under investigation). Any investigatory meeting should not result in disciplinary action without a disciplinary hearing taking place first. If paid suspension is necessary during the investigation it should be as brief as possible and kept under review. The business should clarify that this is not in itself a form of disciplinary action.

Inform the employee of the issues in writing: If, following the investigation, it is found that there is a case to answer, the business should notify the employee in writing of the alleged misconduct or poor performance and its possible consequences in sufficient detail to enable them to respond at a disciplinary hearing. The notification should set out details of the disciplinary hearing, including the time and place of the hearing. The disciplinary hearing should be held without unreasonable delay. However, the business must ensure the employee has reasonable time to prepare their case. Any written evidence (for example, witness statements) should be provided to the employee. There must be a disciplinary meeting or hearing. The business should not make a decision to dismiss or take other disciplinary action without a disciplinary hearing or meeting taking place first. If the employee is persistently unable or unwilling to attend, without good reason, the business is entitled to hold the meeting or hearing in their absence and make a decision on the available evidence. Both business and employee should give advance notice of any witnesses they intend to call. At the hearing:

  • The business should explain the allegations and go through the evidence
  • The employee should be allowed to set out their case and answer the allegations, and
  • The employee should have a reasonable opportunity to ask questions, present evidence, call relevant witnesses and raise points about any information provided by the business’ witnesses

Inform the employee of the decision in writing: After the hearing, the decision should be sent to the employee in writing without unreasonable delay. Written warnings should set out:

  • The nature of the misconduct or poor performance
  • The improvement required
  • The timescale for improvement
  • How long the warnings will remain current
  • The consequences of further misconduct (or failure to improve) within that period
  • The employee’s right to appeal the decision and the procedure they need to follow to do so

The employee has a right of appeal

  • If the employee feels the disciplinary action against them is unjust, they may appeal in writing, specifying the grounds of the appeal
  • If the employee brings a tribunal claim without first appealing, any compensation awarded may be reduced
  • Practical steps for businesses to take to improve their disciplinary procedures
  • Involve employees in developing workplace procedures, and make sure those procedures are transparent and accessible to employees.• Encourage managers to manage conduct and performance issues quickly and informally before they get to a formal disciplinary stage
  • Investigate issues thoroughly. Even if the employee has attended an investigatory interview, always hold a disciplinary hearing once all the evidence is available, and allow the employee to put their side of the story before making any decision
  • Keep written records, including minutes of meetings
  • Communicate decisions effectively and promptly, setting out reasons

The content of this Business Briefing is for information only and does not constitute legal advice. It states the law as at November 2015. We recommend that specific professional advice is obtained on any particular matter. We do not accept responsibility for any loss arising as a result of the use of the information contained in this briefing.