Exercising Discipline in a Disciplinary
Most employers will, at some point, have to apply a disciplinary process in respect of an employee. It’s not exactly a task that anyone relishes, not least because of the unpleasant nature of confronting thorny issues such as persistent lateness, inappropriate use of social media and even theft. The amount of time they can swallow up is also extremely disruptive to the business.
Face the situation and deal with it quickly
Unfortunately, there isn’t much that can be done about either of these issues. However, avoiding the situation will only make matters worse; other employees could come to resent the fact an employee is being shown ‘favouritism’ and the employee in question may become even more difficult to manage when they realise nothing will be done to reprimand their behaviour.
When a misconduct situation arises, the best advice is to deal with it quickly and in line with the relevant procedures. Check the staff handbook (or the ACAS Code) and follow the process contained within it, if not to the letter then as closely as possible. Spending the time to get it right at the outset can save a multitude of problems further down the line.
A typical process for dealing with an employee’s misconduct will involve an investigation, a disciplinary meeting (where the employee has the right to be accompanied), an outcome (e.g. a written warning, final written warning, dismissal or other sanction) and an appeal. This is a basic overview and there are specific requirements for each stage. The ACAS website provides further details about each step and your duties.
Some employers will have the benefit of assistance from a Human Resources department when problems arise. However, it is important to remember that primary responsibility lies with the employer, and HR should not be allowed to substitute their view for that of the person conducting the disciplinary.
Ramphal v Department for Transport
A prime example of this was in the case of Ramphal v Department for Transport. Mr Ramphal was required to travel as part of his job, and this meant that he was permitted to claim expenses subject to certain allowances. Following an audit of his expense claims, he was recommended for further investigation. The investigating officer concluded that although there were areas for concern, overall Mr Ramphal had given plausible explanations for his claims. The officer recommended a final written warning as a sanction.
After communicating this to HR, there then followed a period of six months whereby the report was altered, and the final recommendation was substituted to summary dismissal for gross misconduct. Mr Ramphal originally lost his claim for unfair dismissal on the basis that DfT had carried out as much investigation as was reasonable and that the dismissal was in the range of reasonable responses.
Chhabra v West London Mental Health NHS Trust
The EAT however felt differently. They held that the decision of the Supreme Court in Chhabra v West London Mental Health NHS Trust, which set out the guidance on the role of HR in disciplinary investigations, meant that the report of an investigating officer must be the product of their own investigations. To allow HR to interfere with findings of fact and involve themselves with issues of culpability amounted to improper influence, which resulted in a compromised investigation process and therefore an unfair dismissal.
So even if you are able to call on the assistance of a HR Department, remember that their involvement should be limited to guidance on questions of law, procedure and process only.
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Please note that the information contained in this article was correct at the time of writing. There may have been updates to the law since the article was written, which may affect the information and advice given therein.