Disciplinary Procedures (from an Employer’s Perspective)

1. You don’t have to guarantee you are right – you do have to be reasonable.  An employer is not held to the same standards as the Crown Prosecution Service.  The burden of proof for an employer imposing a disciplinary sanction is not whether the employee is guilty “beyond reasonable doubt” it is whether a reasonable employer, having conducted a reasonable investigation, has a genuine belief that the employee is guilty.  Conduct a reasonable investigation. Hear the employee out. Consider their explanations properly and investigate new evidence raised. Then, reach a reasonable decision.  Try to take emotion out of the equation. You might be furious that an employee has behaved in a certain way but try to be objective.  How would you feel if someone was recounting these events at another organisation.  What would you feel was fair?

2. Perception is reality – if an employee perceives a process or their treatment as being fair then they are less likely to complain or to have grounds to complain.  Be consistent in how you treat employees.  Failure to do so not only opens the door to any sanction being challenged as unfair or unreasonable but also opens the door to allegations of discrimination.  Be clear about the process to be followed and what the employee can expect (and stick to it).  Explain why you are / are not prepared to do / consider certain things or interview certain people (just be sure you are reasonable about it).  You’ll have to explain it at an employment tribunal, you might as well do it now!

3. Criminal or Regulatory Processes do not necessarily take precedence – you don’t necessarily have to wait for the outcome of a police or regulatory investigation to take action against an employee BUT carefully consider the impact of your actions! Firstly – reaching a decision on facts as an employer might well be reasonable, but if an individual is subject to a police or regulatory investigation an employer’s negative decision may have a much more significant impact on the employee, their life (liberty?) and their ability to work in future.  The “no smoke without fire” principle – or the assumption that because their employer dismissed them they must be guilty!  Secondly – where there is potential criminality always consider whether your actions as an employer might amount to “tipping off” the employee under the Police and Criminal Evidence Act or ! That is a criminal offence in itself!

4. Give someone the right to be accompanied by a solicitor or friend – if appropriate.  Yes, yes, the right is to be accompanied by a colleague or TU Representative but keep an open mind, at least initially.  If someone is subject to a police or investigation where there may be more significant impact than internal sanctions or the ending of their employment then it is normally appropriate to give them the right to be accompanied by their solicitor.  You can always consider if it is appropriate to also have in house counsel or your lawyer in the room – but ultimately an individual having representation in the room isn’t likely to have an enormous impact on you as an employer, especially if you are clear in advance that the role of the lawyer is that of a companion only and not as a substitute mouthpiece for the individual.   If someone requests to be accompanied by a friend or family member because of a disability – say yes. End of! It’s quite probably a reasonable adjustment and refusing it exposes you to employment tribunal claims.  But even if someone is not disabled it might be reasonable (and easier) to consider accommodating it – again it’s unlikely to have a significant impact.  Obviously it won’t be appropriate in all situations, and you might need an NDA signed but certainly consider it – and if you’re not going to agree it explain why.

5. Communicate outcomes promptly – I would say that it’s more important to communicate the outcome promptly than it is to phrase the reasons eloquently.  There is nothing to prevent you telling the employee the level or warning they will receive and that written reasons will follow in a day or so (but generally no longer, and do adjust appeal timings to take that into account).  Whatever you do, do not prepare the outcome in advance.  The metadata will give you away (and yes, employees do request it) and it’s a slam dunk on the outcome having been pre-determined.

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