Our aim in the HRExpress team is to provide tailored advice and guidance throughout the entire disciplinary process from the moment a potential disciplinary issue arises, through the investigation and any potential suspension, up to and including any appeal.
Disciplinary processes – getting the suspension and investigation right
Here, we comment on what are typically the first two stages – suspension and investigation. Our article how to navigate the process of dealing with a disciplinary issue goes into the next stage of the process in more detail.
Where does a suspension and investigation fit into a disciplinary process?
Reduced to its simplest form, a formal disciplinary process has four stages:
- Consideration of potential suspension.
- Investigation.
- Disciplinary hearing and outcome.
- Appeal and outcome.
Although we have put suspension at the start of this list, it is something which could come up at any point of the process and certainly once an employee has been suspended, that suspension should be kept under close review throughout the subsequent process.
As we’ve commented on further below, suspension won’t be appropriate in every disciplinary process, and it is important that it is given proper consideration before being applied.
Should we have a written process for how we manage a suspension and investigation?
All employers must have a written disciplinary policy in place. It does not have to be anything complex or onerous. However, it should set out transparent and fair rules and procedures for disciplinary decisions and appeals. As part of HRExpress, along with providing day to day advice on a range of employment matters, we are also able to provide you with template policies and, depending on your membership, review policies and staff handbooks you have to ensure they are compliant with current employment law.
When might we want to suspend?
It’s quite natural, when facing potential misconduct, to consider suspending the employee. However, it should not be a knee jerk reaction automatically to suspend, and suspension will generally only be appropriate where the ongoing presence of the employee in the workplace may:
- Pose a risk to the business.
- Pose a risk to other employees.
- Hinder any ongoing investigation.
Consider, for example, the following scenarios and how you might approach them:
- You have evidence to suggest that your finance manager, who has security access and passwords for all of the company accounts, has been misusing confidential financial information.
- You have been informed that an employee took a day off sick on a day for which a holiday request had been refused.
- An employee has made a complaint against another employee that they have been bullying them.
Suspension is a neutral act and should not imply guilt or be used as a disciplinary sanction. Employees generally should remain on full pay and receive benefits in the usual way during the period of suspension.
What should we be considering?
You should look at the employee’s contract first to check whether there is a suspension clause in their contract. If there isn’t, you may be at risk of breaching the employee’s contract if you do suspend so this would be something to take specific advice on.
Presuming that you are contractually able to suspend, you should consider the following:
- Is the suspension necessary?
- Is there a risk to clients, other employees, the business and/or might the investigation potentially be compromised if the employee stays at work?
- Are there any alternatives to suspension? For example, working from home or at a different location, restricting system access, changing their shift pattern or have part of their job temporarily removed.
How can we help you with suspension?
At HRExpress we are able to talk through the risks involved in suspending or not on a case-by-case basis. We can provide you with a template suspension risk assessment to complete prior to suspension, so that you can document your assessment of the risks of the employee remaining in work and the consideration you have given to any alternatives and any mitigation you can put in place.
If you decide to suspend the employee you should communicate this to them in writing, making sure you inform them of:
- The reason for their suspension.
- That the suspension is not disciplinary action.
- They will continue to be paid.
- That the suspension will be as short as possible and remain under regular review.
We can provide a template letter to communicate the suspension and ensure these points are all covered.
You should stay in regular contact with the suspended employee, keep them up to date with the investigation and ensure that the original grounds for suspension are reviewed at regular intervals. If those grounds change at all during the investigation if the potential risks increase or decrease, you should update your risk assessment and confirm any changes to the employee.
Regardless of an employee’s culpability, being suspended and being the subject of a disciplinary investigation is inevitably an upsetting and stressful experience. Do make sure you check that your employee has access to support networks, including any employee assistance programme you might be able to signpost them to. For longer suspensions, we recommend having separate welfare support meetings if resources allow.
Investigation
When issues of potential misconduct come to light and it is not possible to resolve them informally, one of the key and most important parts of the process is to carry out a reasonable investigation into the allegations. If an employer does not carry out a reasonable investigation, any decision made in the disciplinary is likely to be unfair, so it is crucial that a reasonable and unbiased investigation that takes into account all the facts is carried out.
What do we need to do first?
You should carry out an investigation even in cases where the issue appears to be clear cut or the employee has admitted the misconduct in question.
Consider first who is going to carry out the investigation. They should ideally be senior to the employee involved and certainly should not be implicated at all in the matters being investigated. It is important that they approach the investigation with an open-mind and with a view to finding evidence both proving and disproving the allegations.
The purpose of the investigation is to establish the facts and any explanations for the conduct. The investigation must be reasonable in all the circumstances. Those circumstances will include the seriousness of the potential disciplinary outcome and the extent of witness and other factual evidence available. You need to investigate sufficiently to ensure that the allegations are clear, so that these can be put to the employee in sufficient detail to enable a meaningful response.
The investigation itself and any meeting which takes place as part of it should not in itself result in any disciplinary sanctions. The investigator’s role is to make a recommendation on whether disciplinary action should be taken, following which it is for the disciplinary manager to decide what, if any, disciplinary sanctions should be given.
Employees do not have a statutory right to be accompanied by either a colleague or trade union representative at investigation meetings (although check your disciplinary procedure as such a right may be allowed under your own procedure). However, it is worth considering if the meeting might progress more smoothly with a companion in attendance and it would certainly provide additional support to the employee. If the employee requires a companion to the investigation meeting as a reasonable adjustment, then it would be sensible to permit that to avoid being at risk of a disability discrimination claim.
We have completed the investigation – what’s next?
Once the investigation is complete the investigator should determine whether there is a case to answer. They are not commenting on guilt or sanction, only that there is sufficient evidence to warrant a disciplinary hearing. Their findings and recommendations should be written up in an investigation report, together with supporting evidence.
If the investigating officer decides that the matter should proceed to a disciplinary hearing, a separate impartial individual should be appointed to deal with the disciplinary. It would not normally be considered fair or impartial if the investigating manager also carries out the disciplinary. This principle also applies to appeals, so do plan ahead with that in mind. The practicalities of having three individuals who are sufficiently trusted to carry out the duties of investigator, disciplinary chair and appeal chair can cause difficulties for smaller organisations. The ACAS Code of Practice does give consideration to the resources of the employer, however, if dismissal is a likely outcome it might be wise to bring in external support to ensure that three separate individuals are dealing with each of the three stages. We have dedicated individuals within the team who can assist with any of these stages as well as connections with established HR consultancies, where our internal team is not available.
We have template documents and letters to support with recording the outcome of the investigation, the initial invitation to the disciplinary hearing, failures to attend and to issue the outcome.
What happens if I get it wrong?
If you dismiss an employee without carrying out a fair and proper process, they could succeed with an unfair dismissal claim, even if the underlying reason for dismissal might well be fair. Further, if you lose a claim for unfair dismissal and a tribunal finds that your failure to follow a fair procedure, as guided by the ACAS Code of Practice, was unreasonable, your employee could benefit from an uplift to their compensation of up to 25%. Employment tribunals are very costly and time intensive, so it is important that you get things right from the get-go to minimise the risk of a successful claim.
We understand that not only can the disciplinary process be stressful for the employee, but it can also place strain on managers who need to run the process. We are able to provide advice on all situations to guide you through the whole process of suspension and investigation (as well as beyond) to ensure you are following the correct procedure and complying with the relevant employment laws.
If this is something that your organisation needs help with then get in touch with our HRExpress team.
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