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“I have an employee who has been rude to a customer and then shouted at a colleague in the showroom. The facts are obvious to me so I was going to progress to a disciplinary hearing and give him some form of warning or possibly even dismiss the employee. I have already talked to the employee in question and he’s denying everything but I just don’t believe him. Can I go ahead with a disciplinary hearing?”
All disciplinary matters, no matter how seemingly straightforward, should be subject to an investigation before a decision is made to progress to formal disciplinary action. If an employer proceeds straight to a disciplinary hearing without a reasonable investigation, that can undermine the fairness of the disciplinary and ultimately lead to successful claims in a Tribunal for Unfair Dismissal if the employee has over 2 years’ service.
The purpose of the investigation is essentially to fact find. The manager pursuing the investigation should not come to a view on the definitive guilt or otherwise of the employee in question, but should gather evidence and facts as to what happened. The investigatory officer ultimately has to decide whether or not there is a case to answer.
In the above scenario, the employee who is alleged to have been rude to the customer and colleague should be interviewed by the investigating officer and a statement taken. Any other witnesses should be interviewed, and details taken from the customer, if that is possible. It is important that the investigator makes careful notes of all discussions and asks employees to sign that the statements or minutes taken from the investigation, to confirm that they are correct. At the end of the investigation the investigating officer gathers together all the evidence and decides whether or not to deal with the matter informally, or whether formal disciplinary action is necessary.
In the above example it would also be unwise for the Manager, who has already undertaken the investigation, to go ahead and conduct the subsequent disciplinary hearing. The ACAS Code of Practice suggests that, particularly in cases of misconduct (it is more arguable in cases of capability/poor performance) the person undertaking the investigation should not be the same person who ultimately chairs and makes a decision at the disciplinary hearing.
In cases involving serious misconduct, or where an employee’s presence at work may hamper the investigation, an investigating officer also has to consider whether or not to suspend on full pay for the purposes of investigation. If employees are subsequently dismissed for gross misconduct, but were not suspended at the time of the initial allegations, then that can assist a Claimant in a Tribunal in arguing that the employer did not genuinely consider the matter as gross misconduct.
How much investigation is necessary depends on (i) the complexity and the facts of the case and, (ii) the size of the employer. The more complex, the more extensive the investigation should be. In simple misconduct situations, where there are a few witnesses, then the investigation can be simply a matter of interviewing witnesses and taking statements. Tribunals place a heavier burden on large companies with more resources than they do on very small businesses where it may be more difficult without HR support. Investigating officers are well advised to read the ACAS guidance on conducting workplace investigations, available on the ACAS website, which provides excellent guidance.
Henry Knill, Solicitor, Motor Industry Legal Services