When it comes to disciplinary proceedings, there are some common ifs and buts that can get in the way of progressing the case. Here are some tips.
You’ve been there – you’re all set to start off a disciplinary but then…
- If we’ve suspended an employee but then they get signed off, where do we stand?
- But the police are investigating – you’re going to have to wait!
- But I’m not well – you can’t carry on!
- If I put in a grievance, you’ll have to put your disciplinary action on hold!
Here’s our guidance on how to deal with these only too common spanners in the works.
If we’ve suspended an employee but then they get signed off, where do we stand?
An employee facing disciplinary allegations may be suspended, provided there are reasonable grounds to do so. But what happens if they are subsequently signed off? What pay are they due then?
Generally speaking, a suspension will be at full pay. However, if they then get signed off, you might want to review the amount of pay they’re receiving, particularly if they are only entitled to receive statutory sick pay (SSP) when off ill.
However, take care. The suspension pre-dates the fit note and is the primary reason for the employee’s absence. Check if your contractual terms for suspending an employee make provision for the employee to remain ready and willing to work or for pay to be limited to normal sick pay entitlements if they are unwell. If they don’t, moving an employee onto SSP only could give rise to a claim for unlawful deduction from wages and you may therefore need to keep them on full pay.
But the police are investigating – you’re going to have to wait!
The interaction between an internal disciplinary investigation and the impact of a separate ongoing police investigation has probably never had more mainstream media coverage than in the wake of the investigations into Boris Johnson and those Downing Street parties. It’s also something Manchester United are probably grappling with too, as they await the outcome of the arrest of Mason Greenwood on rape and assault charges.
Misconduct which gives rise to a police investigation won’t necessarily always prompt an internal disciplinary investigation. If it has no bearing on an individual’s suitability for their job, then disciplinary action may not be warranted.
Simply being implicated in a criminal offence is not grounds for a disciplinary sanction. However, the conduct involved may be such that it does have a bearing on employment and an employer may therefore want to commission their own investigation. Indeed, it could be the employer who has triggered the police investigation. Either way, there are some key things to bear in mind:
- Generally speaking, you don’t need to wait if the misconduct requires prompt attention. In releasing her report, Susan Gray was clear that Government did not need to wait for the police investigation to be concluded before action could be taken. The same is true for any other employer. Police investigations can take many weeks or even months to conclude. In the employment context, it is important to act promptly. It might feel like the right thing to wait but doing so could make it more challenging to take any action you want to internally.
- An individual who is subject to a police investigation is likely to be receiving legal advice and will want to be careful not to prejudice their interests. That may mean they are less willing to be forthcoming in your investigation. It’s nevertheless important that you do what you can to obtain and verify information. If the accused is unwilling to comment in full, they should be informed that a decision will be made on the available information and, if appropriate, that that may lead to dismissal. The employee’s decision should be noted and taken into account as part of the investigation.
- You may be able to get information from the police but take care. You need to be confident that you are receiving reliable information from someone sufficiently senior to give it to you. In most cases, it should also not be regarded as a substitute for your own investigation.
- The burden of proof for criminal offences is ‘beyond reasonable doubt’. This is a higher burden than an employer is required to make out, which relies on reasonable belief of guilt following a reasonable investigation.
But I’m not well – you can’t carry on!
Unfortunately, it’s not uncommon for an employee facing disciplinary actions to go to their GP and present a fit note for ‘work related stress’ or similar. It’s not difficult to see that facing disciplinary action could cause stress or anxiety but even if the illness is genuine, that doesn’t mean you can’t continue as planned.
Being too unwell to work is different from being too unwell to participate in disciplinary proceedings and, if necessary, you could seek confirmation to that effect from an employee’s GP (though that will involve seeking consent and will add time and cost to the process).
Often the impact of unresolved disciplinary allegations will be adding to an employee’s ill health and counterintuitive as it may seem to the individual, concluding them may ultimately be beneficial.
Nevertheless, you should consider if you need to make any adjustments to your process. For example:
- Holding an investigation meeting or disciplinary hearing on neutral ground may be wise;
- You may need to be willing to allow a little more time in the process and give the employee longer to prepare;
- You could consider extending who they can be accompanied by, so that they could bring a friend or family member; and
- Whilst you ideally still want to meet with the individual in person, if that’s proving impossible, consider asking them to submit a written statement or written responses to questions, so that these can still be considered before a decision is made.
Ultimately, if despite taking all of these steps, an employee is still refusing to participate in the process, an employer may get to a point where they have no choice but to proceed and make a decision will be made without the benefit of the employee’s input.
If I put in a grievance, you’ll have to put your disciplinary action on hold!
What if, in the middle of a disciplinary process, you receive a grievance from the accused employee? The grievance may be genuine, not tactical, and certainly should not be ignored. You should consider whether it warrants pausing the disciplinary action but that won’t necessarily be the case.
- Where the matters complained of in the grievance are unconnected with the subject matter of the disciplinary, it will often be fine to investigate and deal with the two concurrently. The two processes should be kept separate to prevent one from influencing the other.
- In other situations, there may be a very close connection between the grievance and the disciplinary, in which case the pragmatic approach may be, ideally with agreement, to investigate everything together. Someone separate and independent should still be put in place to decide on any disciplinary action that may be found to be warranted.
- Sometimes a grievance lodged shortly after a disciplinary outcome has been delivered will actually be an appeal against that outcome, in which case it may be possible to deal with it as part of a disciplinary appeal process.
However, if the grievance alleges that there is a conflict of interest for whoever is handling the disciplinary matter, that there is bias involved or that there is the possibility of discrimination, these are matters which it would likely be better to investigate first before concluding the disciplinary process. This is to ensure, so far as possible, that the grounds and process for the disciplinary allegations are sound.
We regularly advise and support businesses on disciplinary investigations and hearings through our HRExpress and HR Consultancy services. Do get in touch if you’re unsure of how best to handle any situations like these and we’d be happy to help.