Dealing with employee misconduct is one of the most common challenges facing employers. Even the most ‘open and shut’ case needs to be dealt with properly to be absolutely sure it’s fair – and, of course, mitigate the risk of potentially expensive and time-consuming unfair dismissal claims.

As part of our ‘Getting it Right’ series, we’re taking a look at helping employers to do the right thing when dismissing employees for misconduct.

It’s important to point out that each individual case is different and needs to be dealt with taking into account all the facts, including those which may not be immediately obvious. The right legal advice is key – speak to our specialist employment team however simple or complex your issue.

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Investigation

If an allegation of misconduct is raised, it must be investigated. The nature of the investigation will vary from case to case, and will typically involve:

  • Obtaining and reviewing relevant documents (e.g. emails, text messages. financial information etc)
  • Viewing any relevant CCTV footage
  • Speaking with potential witnesses
  • Interviewing the employee who has been accused of misconduct

Is the employee entitled to representation? Employees aren’t automatically entitled to be accompanied to an investigation meeting, but it may affect the fairness of a subsequent dismissal if that request is unreasonably declined.

When should I suspend an employee? During the investigation stage, an employer needs to consider whether the accused employee should be suspended. Any period of suspension should be with full pay and should be no longer than necessary. It should also be made clear that suspension does not constitute disciplinary action.

Top tip: Suspension will not be appropriate in all cases and should typically be reserved for circumstances where there are reasonable grounds to believe that the employee might interfere with the investigation or poses a genuine risk to health and safety, to other people, or to the best interests of the business. Employers should also ensure they have a contractual right to suspend.

 

Arrange a disciplinary hearing

If the investigation concludes that there is a case for the employee to answer, they should be sent a written invitation to a disciplinary hearing. This should:

  • Confirm when and where the hearing will take place and who will be conducting it. Employers must balance the need to give the employee enough time to prepare with the need to hold the hearing without unreasonable delay
  • Confirm details of the alleged misconduct, to enable the employee to prepare their response
  • Enclose copies of any evidence, including witness statements, which will be referred to at the disciplinary hearing
  • Confirm the employee’s right to be accompanied to a disciplinary hearing by a work colleague or trade union representative
  • Confirm the potential outcomes of the disciplinary hearing

Top tip: Cutting corners in the disciplinary process can have devastating consequences including employees who may have committed gross misconduct succeeding in unfair dismissal claims due to procedural flaws.

 

Conduct the disciplinary hearing

The disciplinary hearing should be conducted by someone who has the authority to make disciplinary decisions, and they should not have been involved in the investigation process.

The disciplinary hearing is the employee’s opportunity to respond to the allegations, challenge evidence obtained by the employer during the investigation and present their own evidence in support of their response.

The employer should arrange for someone to take a note of the disciplinary hearing, and the note should be shared with the employee after the hearing. The employee (or their companion) may also wish to take their own note.

Top tip: Employers should ensure that anyone who conducts disciplinary hearings receives regular training on how to conduct them fairly.

 

Confirm the decision

After the disciplinary hearing, the employer should reach a conclusion on whether the allegation(s) should be upheld and whether disciplinary action should be taken.

How should I finalise a disciplinary hearing outcome? The hearing outcome should be confirmed in writing. The outcome will typically be either a written warning, a final written warning or dismissal (with or without notice).

How do I manage the outcome of a disciplinary hearing? If the outcome is dismissal, a letter should be sent setting out the termination arrangements, including whether a period of notice must be worked. If the outcome is a warning, the letter should confirm how long the warning will remain live on the employee’s record and the consequences of any further misconduct. Typically a first written warning would remain live for 6 months and a final written warning would remain live for 12 months.

Top tip: An important aspect of any disciplinary process is the right of appeal. The outcome letter should confirm the employee’s right to appeal, setting out details of how the appeal should be submitted, to whom and by when.

 

Handle any appeal

What do I do if an employee appeals a disciplinary decision? A disciplinary appeal hearing should be arranged and should be approached in a similar way to the disciplinary hearing. A written invitation should be sent and the employee should be given the same right to be accompanied. The appeal outcome should also be confirmed in writing.

Top tip: The appeal hearing should be conducted by someone who has not previously been involved in the proceedings and who is, ideally, more senior than the person who conducted the disciplinary hearing.

 

Other factors

Currently, protection for unfair dismissal starts after an employee has two years’ continuous service with their employer. Prior to that, employers may follow a truncated disciplinary process, provided that does not breach any internal policy the employer may have.

Employers should ensure they follow any specific procedural requirements of their internal policies, e.g. some may include prescribed timeframes, details of what will constitute misconduct or gross misconduct, or additional rights of appeal.

Top tip: the qualifying period for unfair dismissal protection is subject to review and may soon become a right on day one of employment, under the Employment Rights Bill.

 

The test of fairness

How do I know if our disciplinary process is fair? The test applied for whether a dismissal for misconduct was fair is whether, having carried out a reasonable investigation, the employer genuinely believed the employee had committed misconduct. It’s crucial for employers to follow a fair procedure and be able to evidence that fact, to avoid potentially being on the receiving end of successful unfair dismissal claims.

Get in touch with a member of our employment team to discuss how we can support you in managing disciplinary procedures, including how to avoid unfair dismissal claims: EmploymentManchester@h-f.co.uk.

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