EM Law are experts in advising clients on disciplinary investigations and disciplinary hearings. Our employment law team have partner-level experience from leading City and national firms as well as in-house experience from global businesses. We act for employers as well as employees.
Most managers will, at some stage, have to deal with misconduct by a member of staff. When doing so, it is important to ensure that a fair procedure is followed, or any resulting dismissal will almost inevitably be considered unfair by an employment tribunal, assuming that the individual satisfies the eligibility criteria for bringing an unfair dismissal claim.
Key legal principles
Disputes concerning the conduct of disciplinary investigations and disciplinary hearings most commonly arise in unfair dismissal claims under the Employment Rights Act 1996 (ERA 1996), including constructive unfair dismissal claims. It follows that, before commencing any disciplinary process, an employer needs to be familiar with the following:
Who can claim unfair dismissal?
The requirements will usually only apply if the employee satisfies the eligibility requirements to make an unfair dismissal claim. If the employee does not satisfy those requirements, an employer could choose to adopt a less rigorous approach to the conduct of a disciplinary process involving such an employee. Because of the potential consequences of getting it wrong, extreme care must be taken when advising on eligibility requirements. In practice, the requirement for an employee to have two years’ service is likely to be the key eligibility requirement.
Acas Code of Practice
The Acas Code is intended to provide practical guidance to employers and employees on how to fairly carry out disciplinary procedures for misconduct or poor performance. Failure to follow any part of the Acas Code does not of itself make an employer liable to proceedings. However, employment tribunals must take the Acas Code into account where relevant when considering whether an employer has acted reasonably or not. Furthermore, if the employee wins an unfair dismissal case (or one of a number of other types of case) the tribunal can adjust the amount of compensation by up to 25% either way, if either the employer or employee has unreasonably failed to comply with the Acas Code.
When determining if a dismissal is fair or not, a tribunal will consider two key issues. First, the employer must establish the principal reason for the dismissal and demonstrate that it falls within one of the categories of potentially fair reasons in section 98 of the ERA 1996, which include capability, conduct, redundancy or “some other substantial reason”.
Second, it will be necessary for an employment tribunal to apply the test under section 98(4) of the ERA 1996: taking into account all the circumstances of the case, did the employer act reasonably in treating the given reason for dismissal, or reasons, as sufficient to justify dismissing the employee.
Is formal action necessary?
Employers should consider whether a formal investigation and disciplinary proceedings are even necessary. The foreword to the Acas Code encourages informal resolution where appropriate and emphasises that a “quiet word” may often be all that is required to resolve a problem.
Commencing a disciplinary process: planning
If informal action has not resolved an issue, or if the issue is too serious for informal resolution, the employer will need to commence formal processes. Both at the outset of and during a formal process, it is beneficial to understand the requirements and the stages of the process so that, for example, the employer can ensure the correct personnel are available to undertake the necessary work associated with the formal process. However, in doing this, the employer must be careful to not be seen to prejudge the outcome of the process. At its simplest, planning will mean:
The requirement for an investigation to take place prior to any disciplinary action is critical. In all but the rarest of cases, failure to do so will fall foul of the Acas Code or the principles of fairness established by case law. This is true even in cases of apparently “obvious guilt” and, potentially, where the employee admits guilt.
The role of HR
Human Resources should make sure the advice it gives to the investigator is limited to questions of law, procedure and process, and does not stray into areas of culpability. In Chhabra v West London Mental Health NHS Trust  UKSC 80, the Supreme Court considered the extent to which a Human Resources department can permissibly influence a disciplinary investigation. Lord Hodge believed that:
“There would generally be no impropriety in a case investigator seeking advice from an employer’s human resources department, for example on questions of procedure. I do not think that it is illegitimate for an employer, through its human resources department or a similar function, to assist a case investigator in the presentation of a report, for example to ensure that all necessary matters have been addressed and achieve clarity”. (Paragraph 37.)
If this remit is exceeded, then there is a danger that the fairness of the investigation process could be compromised, which could result in an unfair dismissal.
A right to be accompanied?
Employees have no statutory right to be accompanied at an investigatory meeting, although a contractual disciplinary procedure may give them such a right.
Employers should also bear in mind their obligations to disabled employees under discrimination legislation, which provides that employers must make reasonable adjustments where their premises or working practices put a disabled person at a substantial disadvantage in comparison with others. Such adjustments could apply to meetings held by way of an investigation hearing and could include allowing an employee with a disability to be accompanied, where there was no such contractual right.
The Acas investigations guide advises that in many cases it will benefit an investigation to allow an employee to be accompanied at an investigation meeting. It also suggests that employers might even consider allowing a friend or family member to accompany an interviewee.
Before commencing any investigation the employer should always bear in mind the importance of keeping the investigation confidential. This duty applies to both the person conducting the investigation and to any witnesses. Consideration should be given as to whether fellow employees interviewed as witnesses need to be told the name of the employee being investigated. Obviously, this cannot be avoided in small offices and in situations of individual misconduct but there will be cases in which it is possible to gather information without revealing names. In any event, witnesses should be advised not to discuss the investigation with other employees or third parties and, where appropriate, be reminded of their legal duties of confidentiality.
In instances of serious misconduct, an employer may wish to suspend the employee who is being investigated. This may be appropriate, for example, where there is a potential threat to the business or other employees, or where it is not possible to properly investigate the allegation if an employee remains at work (for example because they may destroy evidence or attempt to influence witnesses). It may also be appropriate where relationships at work have broken down (see pages 17 and 18 of the non-statutory Acas guide). However, in such cases each individual is likely to have their own view of whom is to blame and the employer should be careful not to give the impression of having pre-judged this issue.
Employees need to be informed of the fact that they have been placed on suspension as soon as possible. Any conversation to this effect should be followed up in writing.
The period of suspension should be as short as possible and the suspension decision should be kept under regular review. Particular care should be taken where the matter concerns possible criminal allegations as the employer will wish to avoid keeping the employee suspended on full pay for months or even years pending a court hearing.
Is the employer contractually permitted to suspend?
In the absence of an express contractual right to suspend, the employer will need to consider whether the nature of the employee’s work gives rise to an implied right to work. If there is such a right, suspending could be a breach of contact.
Pay during suspension
Unless there is a clear contractual right to do so, an employer will not be entitled to suspend without pay. Therefore, while the employee is suspended, they should continue receiving their pay and normal benefits.
Information to be given to the employee before the disciplinary hearing
Once the investigation is complete, if the employer decides that formal disciplinary action is required, it should write to the employee to confirm the outcome of the investigation and invite them to a disciplinary hearing. The letter should set out sufficient information about the allegations and their possible consequences to enable the employee to prepare their case for the disciplinary hearing (paragraph 9, Acas Code). Copies of any documents or evidence on which the employer intends to rely at the hearing should be provided, together with the names of any witnesses who will attend (paragraph 12, Acas Code). It is advisable to send the employee a copy of the employer’s disciplinary procedure, so that the employee understands the process. Furthermore, the Acas Code advises employers to inform the employee in writing of the right to be accompanied.
Non-attendance and requests to postpone
Employers and employees (and their companions) should make every effort to attend a disciplinary hearing (paragraph 12, Acas Code). However, employees often seek to postpone disciplinary hearings, either through their desire to have more time to consider their position or as a result of illness or non-availability of themselves or their chosen companion.
If an employee fails to attend the first meeting arranged, it will usually be good practice for the employer to re-arrange the meeting to an alternative date in order to give the employee a further chance to attend (see page 19, the non-statutory Acas guide). Where an employee is persistently unable or unwilling to attend without good cause, the Acas Code states that the “employer should make a decision on the evidence available” (paragraph 25, Acas Code). The non-statutory Acas guide lists a number of considerations for employers to weigh up, prior to taking this step:
Employers should be wary of proceeding with the meeting in the employee’s absence, unless there is a compelling reason to do so. However, if the employee persistently seeks to postpone the rearranged meeting or simply fails to attend without good reason, a decision can in some cases be taken in the employee’s absence. However, this may not always be sufficient to ensure a fair dismissal, particularly if a tribunal considers that a hearing with the employee present may have resulted in a different decision.
How to conduct the hearing
There are two main components to the decision: does the employer uphold the allegations of misconduct and, if yes, what sanction does the employer impose as a result?
If the employer does uphold the allegations, most disciplinary procedures provide for a first written warning, a final written warning, dismissal with notice or summary dismissal. Some procedures also allow for action short of dismissal, such as demotion.
If the employer is considering dismissal, it must ensure that it satisfies all the requirements of fairness under section 98(4) of the ERA 1996. Employers have often lost cases where, despite having followed a fair procedure, they have not persuaded an employment tribunal that they had reasonable grounds for believing that the employee was guilty of misconduct or that dismissal was within the band of reasonable responses.
Giving a warning, as opposed to dismissing, is also not without its risks. The Acas Code recommends that employees should usually be given at least one chance to improve (in other words, a warning) before a final written warning is given (paragraph 18). Employers may be in breach of the implied term of mutual trust and confidence if warnings, especially final warnings, are used oppressively for relatively minor misconduct.
Demotion or other sanctions
If considering dismissal, the employer should ensure it has given thought as to whether there are any other possible alternatives to dismissal, such as a demotion, redeployment or final written warning. The employer could provide for a number of types of sanction, including transferring the employee to another job, demoting them, fining them (for example, by not paying a bonus) or suspending them without pay. However, taking such steps without a contractual right to do so could result in claims.
Communicating the decision
The employee must be informed, without unreasonable delay, of the employer’s decision and their right of appeal. Although the Acas Code requires this to be in writing, it is good practice, once the employer has reached a decision, to reconvene the meeting and explain the decision to the employee face to face. If the employee is being dismissed, they would also have the right to ask for a written statement of the reasons for dismissal in any case.
If the employer has decided to dismiss, the letter confirming the decision should:
Records should be made of all disciplinary proceedings. These records should include:
The more contemporaneous the notes, the easier it will be to recollect events and decisions taken at the time. Records kept should be clear and concise, bearing in mind that it may be necessary not only to refer to them, but also to produce them during the course of any subsequent disciplinary hearing or tribunal proceedings.
To ensure that records of disciplinary proceedings are compliant with the Data Protection Act it is important that employers only retain and use the documents in connection with the purpose for which they were obtained and, once the proceedings are concluded, are retained for no longer than is necessary.
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