9am Tuesday 8 February 2022

1. Are we dealing with misconduct or poor performance?

Important point for us to consider right at the start of formal process Often, it’s clear

For example, if the issue is dishonesty, violence or sexual harassment Sometimes, however, it isn’t clear

It may be that the employee is not performing well They may be making mistakes or not meeting targets

Is it misconduct – perhaps they are too busy chatting, spending too much time on their phone on social media?

Is it performance – he is trying his best but perhaps he is struggling with new systems or ways of working?

Does it matter? Yes, it does.

While procedures for dealing with misconduct – and poor performance – are very similar, the outcomes are different

For misconduct, outcomes include warnings and dismissal

For performance, outcomes include warnings and dismissal, but also, alongside any warning, possibly support and further training

If we treat a performance issue as misconduct, and we just issue a warning without any effort to help the employee improve, if we dismiss them there could be a successful unfair dismissal claim.

What do we do if the position isn’t clear?

When we invite the employee to a hearing, we say it isn’t clear, at this stage, if the issues can be characterised as misconduct or poor performance

That characterisation doesn’t really matter at this point. We will go through the issues, you will have the opportunity to have your say, and we will then decide what the underlying cause is of the problems

Following the hearing we will confirm the outcome

If the cause of the problems is not a lack of effort but perhaps a lack of understanding of the role we will issue a warning but we will also some support and/or training

So, just because you can’t always categorise the cause of a problem and whether it involves misconduct or poor performance, at the start of that process, it doesn’t mean you can’t take action.

2.  Should we suspend if an employee is suspected of wrongdoing?

Sometimes we suspend too quickly. Without thinking

Ask yourself – do we really need to suspend this employee in this particular situation?

We should only suspend where the employee’s presence in the workplace would impede our ability to carry out an investigation.

For example, where there is a genuine and reasonable belief that they might interfere with Witnesses or remove evidence

If we suspend without good reason that could lead to a claim for Constructive Unfair Dismissal on the basis that we have breached the term of mutual trust and confidence by suspending without good reason.

Suspension is supposed to be a neutral, non-disciplinary, act, but it isn’t seen that way by the employee and their colleagues. It is a detrimental act.

I rarely recommend suspension.

Normally, if we prefer an employee to be out of the workplace, we suggest they take some additional paid leave until the investigation is complete and we have made a decision as to whether a disciplinary hearing is required.

Almost always the employee will agree to that

Proceeding in this way means that we can keep them away from the investigation, with no risk to us, and no stigma for them

3.  What do we do about reluctant witnesses?

Witness evidence is often very important in cases of misconduct. Sometimes, however, a witness will be reluctant to make a Statement. What do we do?

Ask why they want to remain anonymous. It may be:

• Willing to tell us what they know – but don’t want to get involved in a disciplinary process affecting another employee;
• Don’t want to be the only one making a Statement;
• Worried about consequences if employee isn’t dismissed and they have to continue working alongside them having made a Statement which has been used against

Often, we can persuade them to make a Statement, if, for example, others are making Statements and if we explain how important their evidence is in the context of enabling us to resolve the matter

Sometimes it can help if we are able to get the message across to them, in a subtle and non- attributable way, that the accused is unlikely to be returning to work after this process so they needn’t worry about having to work with them in the future.

If we can’t persuade them then we can’t force them.

Unless they are employed in a managerial capacity in which case we have more leverage as their seniority brings with it additional responsibility to act in the best interests of the organisation which includes giving truthful evidence in relation to a situation about which they have some knowledge – that really isn’t too much to ask of our team leaders and managers.

We can offer to anonymise their Statement but we can’t guarantee the accused won’t be able to work out who they are. For this reason, employees often unpersuaded by this suggestion.

Sometimes, therefore, despite our best efforts, we are unable to persuade a witness to help us out.

We will have to decide whether to go ahead with the disciplinary process or drop the matter

Maybe we can go ahead without their Statement if we have other Statements and other evidence.

If their Statement is crucial, however, we may have to drop the matter.

Sometimes, albeit rarely, if the matter is extremely serious – e.g. sexual or racial harassment – but our key witness will not give evidence, we may decide to hold a disciplinary hearing in any event giving only the gist of the allegations to the accused

This may not be fair to the accused but the risk of a successful unfair dismissal claim may be a risk we are prepared to take if the alternative is continuing to employ someone who we believe is a danger to our staff.

A decision of this type is easier to take if the accused is a relatively low earner meaning that the level of compensation payable following a successful unfair dismissal claim will be modest.

4.  What if there is conflicting evidence?

In some cases, the only evidence we have comes from the accused and one other witness and their evidence conflicts.

One person’s word against another.

It might be an allegation of a sexist or racist comment – or act – and no one else was present. Some employers are reluctant to make a finding in this situation.

They take the view – ok, I may believe one of them and not the other, but I can’t act on one person’s version of events without other evidence

Not so

You are entitled to prefer the evidence of one witness over the evidence of another witness Even if the matter is serious – might result in dismissal – you are entitled to make that finding. Judges are understanding about these situations

Judges in the Employment Tribunals do it all the time. You will see it in their Judgments, where they say, without giving reasons, in relation to a particular incident, that they prefer the evidence of Witness A in relation to the incident over the evidence of Witness B.

They recognise that employers have to make decisions in these situations where the evidence is finely balanced

So, don’t be afraid to make decisions

5.  What if the accused raises a grievance during disciplinary process?

What if the grievance is about the manager dealing with the disciplinary hearing?

For example, that the manager is biased against the employee because of a previous disagreement.

We bring in a new manager to deal with the disciplinary hearing.

What if the grievance is not about the manager dealing with the disciplinary hearing and is not related at all to the subject matter of the disciplinary hearing?

Sometimes, an employee, when invited to a disciplinary hearing will respond immediately with a grievance about historical matters which, while they may have substance, are not related to the subject matter of the disciplinary hearing.

In these cases we deal with the grievance alongside the disciplinary. No reason to delay the disciplinary.

The same manager can deal with both the disciplinary and the grievance.

What if the grievance is related to the subject matter of the disciplinary hearing?

It may be that disciplinary action is being considered because an employee walked off site, without any prior discussion, missing a vital client meeting.

During the initial investigation they reveal that they have been subject to racial harassment for a number of months, something was said on this occasion and they just couldn’t take any more.

In a case like this we would adjourn the disciplinary until we have dealt with the grievance. We may then decide to abandon the disciplinary process

We may decide to proceed but impose a low level sanction – because of mitigating factors

What if the grievance relates solely to the disciplinary process itself?

Sometimes we see complaints about how the process is being handled – e.g.

• Other people have not been disciplined previously for similar issues;

• I have been singled out because of my age, sex, nationality etc;

• Relevant witnesses have not been

This type of issue we can deal with as part of the disciplinary process. They relate to that process. There is no need for a separate grievance process

6.  What do we do if the accused wants to postpone the hearing or simply fails to turn up?

What if they just fail to attend?

If an employee simply doesn’t turn up we arrange another meeting.

But, in the letter/email rearranging the meeting we warn that a decision will be taken in their absence if they don’t attend next time

We will also add their failure to attend the first meeting as a further disciplinary allegation to be considered at the rearranged meeting

What if they ask to postpone – e.g. because they need more time to prepare or to find a companion?

We agree to postpone.

If the employee repeatedly requests postponements we can refuse their requests (unless they have very good reasons) and, having warned them about this, make a decision at the hearing in the employee’s absence.

What if the employee asks to postpone because of stress/ill health?

This is not an unusual situation when an employee is faced with possible dismissal.

We should agree a postponement, perhaps until the expiry of their current Fit Note, then we get on with rescheduling the hearing.

We may agree to a longer delay if the disciplinary issues are fairly trivial or if the health issues are serious.

If we do go ahead while they are off sick we should offer alternatives to an in-person hearing – e.g. telephone/video/off site/employee’s home/written submissions

We may also allow a friend or family member or support worker to accompany them

The general approach, therefore, is to balance the seriousness of the health issues and the seriousness of the allegations, and offer alternatives to an in-person hearing if we are going ahead while they are off sick.

There is, however, no need for endless delays

7.  Do we need to ensure a different manager deals with each stage of the process?

If possible, yes

Investigation – Disciplinary Hearing – Appeal Ideally a more senior person deals with the Appeal

Also, managers handling any of these stages should not have been involved in the issues being investigated

Normally achieving this separation is not a problem in the public sector and larger private sector companies

But it may not be practical in small businesses to designate different roles to different people. And that’s fine.

Judges will not criticise a small business for having just 1 or 2 people doing everything.

If we only have one Director do we have to bring in an external person to carry out the investigation or deal with the disciplinary or appeal hearing?

No.

We can do if we want to but we don’t have to.

Any external person can only make a recommendation – they cannot dismiss or reinstate your employee

The ultimate decision still rests with the sole director

Bringing in external people takes time and costs money and, unless you choose wisely, the results can be unpredictable.

8.  Who should chair the disciplinary and appeal hearings – management or HR?

Ideally, I prefer HR to advise and guide, and not to make decisions at disciplinary or appeal hearings

This isn’t about competence

It looks and feels better for operational managers to make decisions – with support and guidance from HR

There is a danger of HR losing trust among the workforce if they are seen as imposing discipline, rejecting grievances, rejecting appeals.

Of course, managers need to learn how to do these things HR can’t do everything

That said, choose your managers carefully – with an eye on whether they will make a good witness at a later ET Hearing

Your Witnesses can win or lose you the case

9.  Right to be accompanied – who can the employee bring these days?!

A work colleague

An in house union rep – if we recognise a union

An official of a union (employed by union and certified as competent to accompany employees at these hearings)

We cannot stop the employee bringing whoever they want – if they fall within these categories – even if we think it will impede the process

E.g. Two employees – accused in relation to the same issue – can accompany each other at their hearings

There is no right to bring a lawyer – but we might allow it in very limited circumstances (e.g. where the disciplinary sanction might be career ending)

We might allow a friend or family member or support worker if the employee has a disability or is suffering from serious ill health

Don’t try to prevent the companion speaking

They are allowed to ask questions, make submissions and support the employee Some employers think they are just there as a witness and can’t say anything – not so

10.  Covert recordings – what do we do about it and are they admissible?

Sometimes employees will secretly record meetings or conversations. Can they use them at subsequent disciplinary and grievance hearings? If relevant, yes.

But, their actions, in illicitly recording meetings or conversations, could amount to misconduct or gross misconduct – so it could back fire on them.

As regards disciplinary or grievance hearings themselves, we should warn participants that they should not record the proceedings.

If they record them anyway they can use them at any ET Hearing but it risks damaging their credibility in front of the Judge

Some employers prefer to agree with the employee that they will record the meeting

Personally I prefer note taking as knowing that a meeting is being recorded can inhibit discussion

11.   Can we discipline or dismiss an employee – even if alleged misconduct happened outside of work?

It depends but, often, yes

Key questions are does the conduct in question damage the employment relationship and/or damage the reputation of the employer?

We have a case currently

Involving a long serving employee of a manufacturing company He attacked his wife, outside work, on a weekend

He admitted what he had done

He argued it was a one-off, he had mental health issues, for which he was now getting treatment and support

His argument was that it did not affect his work or relationship with his employer and there were strong mitigating factors

The employer dismissed him.

They accepted he had some mental health issues and was now getting treatment. However, it was not a one-off – there had been a similar previous incident

Also, crucially, they believed that his actions damaged the reputation of the company in the local community, where a number of customers were based.

And, they considered that he may pose a risk to other employees I think that’s a fair dismissal

It probably ought to be fair to dismiss simply because we disapprove of this type of behaviour. But I doubt a Tribunal would agree with me.

12.   Should the disciplinary process be delayed if there might be criminal charges or investigation by a regulator?

It is up to us.

We can wait – or we can carry out our own investigation and disciplinary process.

In one of our recent cases, there was an allegation that an employee had child pornography on his work laptop

He was arrested and charged and pleaded not guilty He worked with young children in a School

The client was nervous about carrying out their own investigation and arranging a disciplinary hearing as he had pleaded not guilty and they didn’t want to prejudice the criminal case.

Our advice was that they should get on with it and start their investigation ASAP. What is the alternative?

Suspending him on full pay until the court hearing? The hearing could be years away.

Do we allow him to continue working – with young children? Of course not!

It is fine, and reasonable, to liaise with the police, local authority, regulator etc, but we must take the initiative at some point and pursue our own process.

13.  Inconsistency of treatment – is it a big deal?

Sometimes an employee will argue, during a disciplinary process or at an ET Hearing, that previously other employees have been treated more leniently in similar circumstances.

This is not an easy argument for the employee to run

To have any success on this point they will have to show that the two sets of circumstances are the same or very similar and that there is no good reason for the difference in treatment

Normally, the circumstances are different and there are good reasons for the difference in treatment

We should consider what they have to say and look into the point they are making but it’s rarely a winning argument for the employee.

14.  Appeals – can we increase the sanction and what if new evidence has come to light?

We shouldn’t consider increasing the sanction.

There is some case law suggesting that it might be permissible in limited circumstances but I would not want to rely on that.

We can certainly take account of new evidence.

In fact, if, at the appeal stage, we review the evidence and it looks a bit thin, we can proactively look for further evidence, which might make the dismissal more solid.

In other words, we can turn what might otherwise be an unfair dismissal into a fair dismissal simply by doing a thorough job at the appeal stage.

Often employers see the appeal as a hassle, a hoop they have to jump through.

We shouldn’t see it like that. We should see it as an opportunity – to put right any procedural or substantive failings which may have occurred at the original decision-making stage.

15.  Without Prejudice proposals

Such a useful tool.

We may want to avoid a full disciplinary process by having a without prejudice discussion

The purpose is to do a deal with the employee – and get them signed up to a Settlement Agreement – without having to go through a long-winded procedure and without running the risk of a claim.

Any Without Prejudice proposals we put forward cannot be used against us in any subsequent legal action if we put them forward in an attempt to settle an existing dispute

What is a dispute?

Any sort of disagreement, which might result in a claim if it isn’t resolved It’s a low bar

When would we have a WP discussion?

At any time provided there is a dispute of some sort

In the context of a disciplinary process we might choose to have the discussion at the investigation stage or we may prefer to hold the disciplinary hearing and then have the discussion before we communicate the decision.

The employee can then leave on agreed terms without being dismissed

We should always make clear that the discussion is going to be on a WP basis and provide the employee with a letter or email setting out the WP offer and clearly marked “Without Prejudice and subject to contract”.

This helps to avoid any suggestion that the WP rule/protection does not apply to our discussions

We can use WP in any context, not just disciplinary proceedings

We often use it with health issues, where there is also a poor performance element (very common).

Offering an exit package can work for us (avoiding a lengthy and difficult process) and can work for the employee as it gives them a severance payment and some time and space to address their health problems.

I wouldn’t bother with s111 A pre-termination negotiations.

They can take too long and do not give us full protection against (for example) discrimination claims.