How to handle a disciplinary issue
When disciplinary issues come up, it can be easy to get things wrong if you don’t follow a fair process. There are some key stages in a disciplinary procedure that you must follow, even for formal verbal, or first written warnings.
To start with, make sure you carry out an investigation that is objective and focused on establishing the facts. It should also include an interview with the staff member facing the allegations if they have information that is key to the case. The length of your investigation will vary depending on how complex the issue is. So, sometimes it will be 5 minutes, other times it could take a few days.
Is it necessary to suspend the employee?
Where allegations of gross misconduct have been raised, you may need to suspend the employee on full pay to allow a fair investigation to take place. This may be the case if you have been presented with complaints of bullying, victimisation or any activity that may amount to a criminal act. If you believe that the employee may have committed a crime while at work, you should also report the matter to the police.
However, take care to give the matter consideration before you suspend the employee. Employment case law Agoreyo v. London Borough of Lambeth 2017 warns that when a decision is taken to suspend, employers need to ensure they have acted reasonably and have a clear explanation as to why this course of action has been taken. You can read more about this in our article: Employee suspension: Not necessarily a ‘neutral act’
If you do have to suspend, it’s essential that you tell the employee why they have been suspended and that they will continue to receive full pay. You should also state that the suspension is solely to allow an investigation to take place, nobody is making any assumptions about guilt and they will have a chance to give their side of the story.
Preparing to investigate a disciplinary issue
So that nothing is left out, it’s a good idea to prepare a plan or checklist of the sources of information that you need to cover. These may include:
- The employee who raised the allegations
- Witnesses to any alleged incidents or events
- Records of any live warnings that apply to the employee under investigation
- Copies of any relevant policies or procedures
- Copies of documents, books, etc that indicate where the employee was, what they did, etc (for example, sign in books, receipts for handling cash)
- Records obtained from computers such as internet history
If you are starting disciplinary proceedings in relation to poor performance and don’t have a capability procedure, you will have to focus more on evidence such as observation by managers and records of performance meetings or appraisals.
Carrying out proper investigations
The investigating manager’s role is to interview any staff member who has relevant information, including any employee who raised a complaint or saw what happened. There are a number of important factors to consider before, during and after each interview:
- Which key pieces of information you need to get from the witness – this should allow you to prepare a list of questions in advance.
- What may need to be double checked – witnesses can make mistakes about what they saw or heard.
- Ensure that the witness provides facts rather than opinions (unless they are specifically asked their opinion on, for example, their working relationship with the employee being investigated).
- Whether different witnesses are providing the same evidence in terms of who did and said what.
- Any behaviour that suggests that the witness may be exaggerating or lying because they, for example, bear a grudge against or simply don’t like the employee under investigation.
It’s also important to clarify any important dates and times with witnesses. People can often be vague on exactly when something happened but the investigation may be compromised if specific details can’t be produced.
If you need to interview the employee facing the allegations in order to decide if a disciplinary hearing should be held, you should arrange this as quickly as possible. Again, this should focus on establishing the facts of what happened and asking questions about discrepancies. Never pass judgement on the employee’s actions at this stage; that is for a disciplinary hearing, should there be a need for one to go ahead.
The investigation decision
You should not rush to decide whether or not the matter should go forward to a formal hearing. Instead, you should review all of the evidence objectively, ensure that there are no gaps in the information available to you and then decide if it is reasonable for the case to be considered at a disciplinary hearing.
It is useful to have an Investigation Report template that you can fill in when investigating disciplinary issues.
The disciplinary hearing
There are two management roles involved in a disciplinary hearing. There is the manager who presents the evidence on behalf of the company. Also, there is the (more senior) manager who listens to evidence from both sides and makes a decision on the application of a disciplinary penalty.
Essentially, it’s the investigating manager’s responsibility to explain the evidence that they gathered to a disciplinary hearing. In turn, the senior manager should ensure that everyone has a chance to have their say (including asking questions) and make appropriate enquiries if they believe that there any pieces of missing information.
The key to conducting a fair disciplinary hearing is thoroughness. If you have been presented with all of the relevant information and not made assumptions, you will be able to make a fair decision in terms of disciplinary action and be able to defend your decision should the employee choose to appeal.
If you need advice on how to handle a disciplinary issue, contact our team or take a look at our disciplinary and grievance service.
For further info, you may like to read the ACAS guidance on greivances and disciplinaries or our own resources below.
