What to do when disciplinary issues in the UK get tricky

What to do when disciplinary issues in the UK get tricky
30 Nov 2014

Management of disciplinary proceedings in the UK can be thrown off the ‘fair and reasonable’ course when employees stop cooperating. This article focuses on the less straightforward aspects of them, such as when the employee goes off sick, wants to be bring a non-statutory companion, suspension is required, witnesses won’t co-operate and when allegations overlap with a criminal prosecution.

The investigation

It is important to investigate all disciplinary allegations - even where an employee is caught in the act or admits the allegation - pertinent mitigation factors or the involvement of others could be missed. For example, an employee caught taking money out of petty cash and putting it in their pocket may actually be providing change from their own resources albeit not following protocol.

Investigations are distinct from disciplinary hearings. Employees have no statutory right to be accompanied to investigatory meetings. Employers should consider making reasonable adjustments for those disabled employees, whose disability places them at a substantial disadvantage compared to others in the circumstances.

The employer need not accept the employee is disabled, but being prepared to consider adjustments, particularly for stressed or depressed employees, by changing the time and place of investigatory meetings or allowing a relative or friend to accompany them might mean the meeting is more productive and there is a reduced risk of the employee becoming absent following it.

Suspension

Suspension should not be a kneejerk reaction, but only used where the allegation is serious misconduct, or where the employee’s presence poses a threat or will hamper an investigation. The length of the suspension should be kept under review and to a minimum.

An employee’s disciplinary record and whether there is available corroborating evidence are relevant to the suspension decision. Failure to do so can lead to an employer’s breach of the implied term of trust and confidence.

Pay during suspension

Employees should ordinarily continue to receive their normal pay (eg basic plus contractual benefits). However, following the recent holiday pay cases where average overtime and commission payments were payable in addition to basic pay when ‘integral’ to the employee’s normal pay (Lock and Neal), employers could be faced with claims for continuing these elements of pay during suspension. At present, each case should be considered on its own merits.

Obtaining evidence

Investigations should commence ‘without unreasonable delay’ according to the ACAS code of practice, before memories fade or physical evidence (computers, phones or CCTV) is lost. Delay can lead employees to believe the matter has been dealt with or is not serious, rendering delayed disciplinaries unfair. It can also cause unnecessary stress. Employers may need to reserve their right to discipline at a later stage if the employee absents themselves, eg sickness or maternity.

In the case of Cook, the employer showed sympathy to the sick employee without raising the disciplinary issue and was said to have reaffirmed the contract. The employer lost the opportunity to subsequently rely on the disciplinary issue which they had delayed raising due to the employee’s absence to justify immediate dismissal without notice.

Ill-health and stress

Sickness absence need not postpone dealing with a disciplinary issue until the employee returns, particularly if the employee is unlikely to return within a reasonable period or cannot say when he will return. The employer may need to modify the process to take into account the employee’s immediate needs, for example, change venue or seek confirmation from occupational health that the employee can participate in the disciplinary process even though he may not be fit to work.

The disciplinary itself can place stress on employees. Part of mitigating this stress can actually be to get on with the disciplinary. To move things forward in stress cases, employers can consider modifying the process, for example, holding meetings by telephone or change of venue and inviting written submissions.

If the employee was already suffering from stress, the employer should consider whether that led to the capability or conduct issue. If so, a proper assessment of workplace stress should be considered first.

Covert surveillance

A sick employee caught on CCTV undertaking an activity which the employer considers he shouldn’t be, can be relevant evidence for disciplinary purposes. However, the employer must ask a medical expert to assess the activity before reaching this conclusion (Pacey). It is obviously best to have notified employees if the employer uses CCTV or other recordings at work, and that they may be used for disciplinary purposes. Use of surveillance in a public place is also permissible.

Employees often make covert recordings of internal meetings, which although undesirable may still be relevant. However, where the employee leaves his phone recording in the room during an adjournment, he is not permitted to make use of private discussions of the employer recorded in this way.

Reluctant witnesses

Confidentiality should reasonably be imposed on witnesses, who need only be aware of matters to which their evidence relates. Witnesses may reasonably be offered anonymity, provided that their evidence is in writing and allows the employee to know the case against him. Where there is a risk of retaliation against a witness, anonymity remains justified and can override the employee’s right to ‘cross examine’ in person.

Legal representation

Only when a disciplinary might result in career ending loss, particularly for a professional who could lose membership of their profession, an employer may need to consider allowing legal representation at the disciplinary hearing (Cave and Kulkarni). These are exceptional cases.

Criminal proceedings

In cases involving criminal allegations, the employee may be advised not to provide a statement to the employer if this might compromise criminal proceedings. The employee should not be interrogated in these circumstances, simply given opportunity to provide a statement.

If police ask the employer to hold off until police investigations conclude, the employer needs to balance the need to proceed without unreasonable delay with this request. It may be impractical for the employer to wait (see Ali). The size and nature of the business, and the number of employees are relevant.

Subject to completion of the police investigation (but not criminal proceedings), the employer should still undertake an investigation, even if the employee doesn’t want to participate, the police investigation should not be a substitute for the employers own.

Employers are obliged to look for evidence of innocence as well as guilt when investigating allegations involving crime, given the serious implications of adverse findings for the employee.

By Emma Barlett, partner, Charles Russell Speechlys.

Management of disciplinary proceedings in the UK can be thrown off the ‘fair and reasonable’ course when employees stop cooperating. This article focuses on the less straightforward aspects of them, such as when the employee goes off sick, wants to be bring a non-statutory companion, suspension is required, witnesses won’t co-operate and when allegations overlap with a criminal prosecution.

The investigation

It is important to investigate all disciplinary allegations - even where an employee is caught in the act or admits the allegation - pertinent mitigation factors or the involvement of others could be missed. For example, an employee caught taking money out of petty cash and putting it in their pocket may actually be providing change from their own resources albeit not following protocol.

Investigations are distinct from disciplinary hearings. Employees have no statutory right to be accompanied to investigatory meetings. Employers should consider making reasonable adjustments for those disabled employees, whose disability places them at a substantial disadvantage compared to others in the circumstances.

The employer need not accept the employee is disabled, but being prepared to consider adjustments, particularly for stressed or depressed employees, by changing the time and place of investigatory meetings or allowing a relative or friend to accompany them might mean the meeting is more productive and there is a reduced risk of the employee becoming absent following it.

Suspension

Suspension should not be a kneejerk reaction, but only used where the allegation is serious misconduct, or where the employee’s presence poses a threat or will hamper an investigation. The length of the suspension should be kept under review and to a minimum.

An employee’s disciplinary record and whether there is available corroborating evidence are relevant to the suspension decision. Failure to do so can lead to an employer’s breach of the implied term of trust and confidence.

Pay during suspension

Employees should ordinarily continue to receive their normal pay (eg basic plus contractual benefits). However, following the recent holiday pay cases where average overtime and commission payments were payable in addition to basic pay when ‘integral’ to the employee’s normal pay (Lock and Neal), employers could be faced with claims for continuing these elements of pay during suspension. At present, each case should be considered on its own merits.

Obtaining evidence

Investigations should commence ‘without unreasonable delay’ according to the ACAS code of practice, before memories fade or physical evidence (computers, phones or CCTV) is lost. Delay can lead employees to believe the matter has been dealt with or is not serious, rendering delayed disciplinaries unfair. It can also cause unnecessary stress. Employers may need to reserve their right to discipline at a later stage if the employee absents themselves, eg sickness or maternity.

In the case of Cook, the employer showed sympathy to the sick employee without raising the disciplinary issue and was said to have reaffirmed the contract. The employer lost the opportunity to subsequently rely on the disciplinary issue which they had delayed raising due to the employee’s absence to justify immediate dismissal without notice.

Ill-health and stress

Sickness absence need not postpone dealing with a disciplinary issue until the employee returns, particularly if the employee is unlikely to return within a reasonable period or cannot say when he will return. The employer may need to modify the process to take into account the employee’s immediate needs, for example, change venue or seek confirmation from occupational health that the employee can participate in the disciplinary process even though he may not be fit to work.

The disciplinary itself can place stress on employees. Part of mitigating this stress can actually be to get on with the disciplinary. To move things forward in stress cases, employers can consider modifying the process, for example, holding meetings by telephone or change of venue and inviting written submissions.

If the employee was already suffering from stress, the employer should consider whether that led to the capability or conduct issue. If so, a proper assessment of workplace stress should be considered first.

Covert surveillance

A sick employee caught on CCTV undertaking an activity which the employer considers he shouldn’t be, can be relevant evidence for disciplinary purposes. However, the employer must ask a medical expert to assess the activity before reaching this conclusion (Pacey). It is obviously best to have notified employees if the employer uses CCTV or other recordings at work, and that they may be used for disciplinary purposes. Use of surveillance in a public place is also permissible.

Employees often make covert recordings of internal meetings, which although undesirable may still be relevant. However, where the employee leaves his phone recording in the room during an adjournment, he is not permitted to make use of private discussions of the employer recorded in this way.

Reluctant witnesses

Confidentiality should reasonably be imposed on witnesses, who need only be aware of matters to which their evidence relates. Witnesses may reasonably be offered anonymity, provided that their evidence is in writing and allows the employee to know the case against him. Where there is a risk of retaliation against a witness, anonymity remains justified and can override the employee’s right to ‘cross examine’ in person.

Legal representation

Only when a disciplinary might result in career ending loss, particularly for a professional who could lose membership of their profession, an employer may need to consider allowing legal representation at the disciplinary hearing (Cave and Kulkarni). These are exceptional cases.

Criminal proceedings

In cases involving criminal allegations, the employee may be advised not to provide a statement to the employer if this might compromise criminal proceedings. The employee should not be interrogated in these circumstances, simply given opportunity to provide a statement.

If police ask the employer to hold off until police investigations conclude, the employer needs to balance the need to proceed without unreasonable delay with this request. It may be impractical for the employer to wait (see Ali). The size and nature of the business, and the number of employees are relevant.

Subject to completion of the police investigation (but not criminal proceedings), the employer should still undertake an investigation, even if the employee doesn’t want to participate, the police investigation should not be a substitute for the employers own.

Employers are obliged to look for evidence of innocence as well as guilt when investigating allegations involving crime, given the serious implications of adverse findings for the employee.

By Emma Barlett, partner, Charles Russell Speechlys.

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