Disciplinary issues FAQs
When a disciplinary issue arises, dealing with it effectively can feel like a minefield. However knowing the right steps to take can avoid a costly and time consuming Employment Tribunal claim. Below are the questions we are most often asked when an employer is faced with this situation:
We’ve just found out an employee has been other bullying members of staff. Can we delay dealing with this issue until the busy summer period is over?
Best practice is to deal with an issue as soon as it is raised. Not only does this protect the company from allegations that it failed to protect other members of staff (in this example), a delay of this length may also go against an employer if a claim of unfair dismissal is later brought to a Tribunal.
One of our managers has just told us she had been convicted of a crime. Can we dismiss her on these grounds?
The fact that an employee has been found guilty of a criminal offence does not automatically mean that she can be dismissed. Various factors need to be taken into account including the offence in question, her position within the organisation, whether or not the conviction has an impact on the company or her ability to do her job. It is best to take legal advice when considering a dismissal in these circumstances.
We don’t have a disciplinary policy. Do we still need to invite the employee to a meeting or can we make a decision without taking this step?
Even though you may not have a written policy, you still need to follow a basic fair process before deciding on the appropriate sanction (if any) to apply. A failure to do so is likely to give rise to an unfair dismissal claim. As a minimum this involves carrying out an investigation into the alleged misconduct, giving the employee notice of the allegations against them, holding a meeting to allow them to respond to the allegations and providing a right of appeal if dismissal is the outcome.
What’s the difference between an investigatory and disciplinary meeting?
An investigatory meeting is simply to put the allegations to the employee and gather their version of events. They do not have to be given notice of this meeting and there is no right to be accompanied to it. In contrast, before attending a disciplinary meeting, the employee should be given sufficient information regarding the allegations to allow them to defend themselves, should be given a reasonable period of time to consider this and should also be advised of their right to be accompanied a colleague or Trade Union representative.
If I suspend an employee following an allegation of misconduct, do we still have to pay their wages?
Yes, otherwise the employee will be able to bring a claim that you have unlawfully failed to pay their wages. Suspension is a neutral act and therefore any absence from work whilst suspended pending an investigation should be on full pay. Reducing or failing to pay an employee’s wages whilst suspended may result in an unfair dismissal claim if it can be shown that the dismissal was pre-determined from the failure to pay wages.
Is the employee allowed to be accompanied by a solicitor to the disciplinary meeting?
The standard position is that employees have the right to be accompanied by a colleague or Trade Union representative to a disciplinary meeting. In very limited circumstances an employee may have the right to be accompanied to a disciplinary hearing by a solicitor, or a family member.
Who can hear the appeal against the decision to dismiss?
The appeal officer should be separate from the person who held the disciplinary meeting to avoid allegations of bias. If the company is small, consider instructing an independent HR consultant to deal with the final stage of the process.