Employment Law in Practice
We strongly recommend that you act swiftly and document the evidence at the earliest opportunity, even take witness statements. Investigations should be undertaken with care and consistency. Decisions made at the disciplinary hearing should not be discriminatory or have any indication that they are predetermined.
Follow the procedure in the contract of employment and handbook. Remember that if the ACAS Code of Practice is not followed the employee can claim an uplift from April 2009 of up 25% on top of the unfair dismissal award for "unreasonable failure to follow the Code".
If you are considering suspending an employee while the disciplinary hearings are taking place, be careful and check that you have a right to do so, in your employment handbook or their employment contract. If you do not have a right to suspend the employee, you can always seek their agreement. Otherwise, you may be facing a claim for constructive dismissal.
In misconduct cases, where practicable, different people should carry out the investigation and disciplinary hearing.
Employers must ensure that their decision satisfies the "range of reasonable responses test." Would another reasonable employer have reached the same decision?
The employer must confirm their decision in writing and advise the employee of their right to appeal.
- Keep a paper trail and copy in your employment solicitor
- Have a clear policy as to misconduct - be consistent
- Appropriate investigation should be carried out
- Provide the complaint and evidence in good time before the disciplinary hearing
- Allow the employee to have a representative at the hearing
- Follow the statutory procedure
- Give the employee the right to appeal, even if at the time their employment has been terminated