How to Conduct Formal Disciplinary Action

INVESTIGATING ALLEGATIONS OF MISCONDUCT

The investigating Manager

Appointing the right investigator is crucial and not as obvious as some Councils think.  Usually the Employee’s line manager would investigate, but that is not always the case.  .

If the Employee under investigation is the Clerk, the line manager would be either the Full Council or a Sub-Committee with delegated responsibility.  No individual Councillor can act as the Investigating Officer.  The investigation would normally be conducted by a panel of 2-3 Members from either the Council or the relevant committee.

The Council/Committee can either delegate decision making responsibility to the panel, or ask them to report back to the Full Council or Committee for a decision to be made regarding whether or not Formal Disciplinary action should occur.

Suspension

Employees should only be suspended if there is a risk to the Council or if their presence in the workplace could hamper the investigation.  According to ACAS Guidelines suspension with pay should only be imposed after careful consideration and reviewed to prevent it being unreasonably long.  It should be made clear that suspension is not an assumption of guilt or form of disciplinary action.

Care should always be exercised in suspending an Employee as it could be used by the Employee as evidence of a breach of trust and confidence, resulting in claims for Constructive Dismissal.  This a particular concern with Senior Employees who may feel that they are unable to resume their duties following suspension due to damage caused to their reputation.

It may have been right to suspend somebody at the start, but if the situation changes and the Council is able to mitigate any risks, it is sometimes possible to bring the Employee back.

Witnesses

Witnesses can be reluctant to give evidence because they do not want to get involved or face repercussions.  The general position is that the Council cannot force somebody to give evidence. Reassurance that they will not face ramifications is the best tactic.  Witnesses may ask if they can be anonymised, but only on very rare occasions should this be allowed.  The accused has a right to know the allegations and the evidence against them so they can defend themselves.

Making the decision and being reasonable

Once an investigation panel has gathered witness evidence, they may need to consider whether the allegations should be pursued through the formal disciplinary route.  The burden of proof is judged on the balance of probabilities so the line manager or Investigating Panel needs to be reasonably sure that the allegations did take place.  If the matter hinges on one person’s word against another’s, with nothing tipping it either way, the benefit of doubt should be given to the accused.

THE FORMAL DISCIPLINARY PROCEDURE

Appointing a disciplinary panel

As with the investigating panel if the Employee under investigation is the Clerk, their line manager would be either the Full Council or a Sub-Committee with delegated responsibility.  No individual Councillor can conduct a Disciplinary Hearing.  The Hearing would normally be conducted by a panel of 3-5 Members from either the Council or the relevant committee.

The Council/Committee can either delegate decision making responsibility to the panel, or ask them to report back to the Full Council or Committee for a decision to be made regarding the outcome of the Disciplinary Hearing.

The key stages of Formal Disciplinary Action

·       Formal Verbal Warning

·       Formal Written Warning

·       Formal Final Written Warning

·       Dismissal

Gross Misconduct

If an Employee is accused of deliberately and wilfully behaving in a manner which any reasonable individual would expect to have caused harm to others, the Council or themselves they could be accused of Gross Misconduct.  Anyone who has been found to act in a way which they knew could have caused harm represents an unacceptable risk to the Council, and has breached the trust and confidence a Council should expect of any Employee.

As a consequence they can be dismissed without the need for Formal or Final Written Warnings, on the basis that the Council has no option but to remove the unacceptable threat.

The Paperwork

If the outcome of the investigation is that Formal Disciplinary action should be pursued a letter needs to be sent to the Employee to invite them to a Formal Hearing.

The invitation must contain:

·       Full details of the allegation, including all evidence

·       Time, date and venue of the Disciplinary Hearing

·       Right to be accompanied by a colleague or Union Representative

The invitation must give a minimum of two clear working days’ notice, but usually not more than 7 days.

The Council also needs to ensure that the Employee has written details of the Council’s formal disciplinary procedures.  Procedures need to be simple, easy to understand, accessible to all employees and confidential.

The Disciplinary Hearing

·       This is mostly a listening exercise.

·       Introduce the Hearing by explaining to the Employee why it is being held.

·       Inform them that you are now going to listen to everything they have to say in response to the allegation.

·       Take written notes of what is said during the meeting.

·       Once the Employee has finished talking, the disciplinary panel can ask questions regarding details of what has been presented.

·       Read the notes back and get all parties to initial/sign every page.

·       Adjourn the meeting to determine the outcome.

The Outcome Letter

·       Inform the Employee of the formal decision in writing.

·       Explain to them why that decision has been reached.

·       Inform them of their right to appeal if action is to be taken.

·       Also inform them of the “live period” if they have not been dismissed.

COMMON PROBLEMS IN MANAGING DISCIPLINARY ACTION.

Get it wrong and the Council could be faced with claims for Unfair or Constructive Dismissal, which could result in compensation of up to one year’s net pay, plus a basic award and other costs being awarded at the Council’s expense.

Here are some of the common failings;

1.     Poor Investigation

Prior to any Formal Disciplinary action taking place, the Council must conduct a fair and impartial assessment of what the Employee is accused of doing.  Quite often Managers and Councillors who want action to be taken ASAP.  Their eagerness to pursue disciplinary action can overshadow the need for an impartial assessment of the alleged misconduct. As a result Formal Disciplinary action can be taken with very little supporting evidence other than what has been put forward by the person making the allegations.

2.     Time Management

Reasonable Councils should address Formal Disciplinary action in an efficient and timely manner, which should be as soon a reasonably possible after the alleged misconduct has taken place. Allowing disciplinary action to drag on for weeks could entitle the Employee to claim they have been subjected to an unreasonable amount of stress caused by the protracted procedure.

Sometimes Councils can justify such lengthy proceedings due to the amount of time an investigation has taken.  For example, gathering witness statements form other staff or complaining customers can take time.  Alternatively the Employee who is accused of misconduct may be signed off sick, which can delay the investigation.

However, lack of available management and / or Councillors to conduct the investigation or hearing can often delay events, and this could be seen as unreasonable.  Problems getting a meeting organised and arranging a Disciplinary Hearing can result in unreasonable, protracted and stressful Disciplinaries.  To avoid difficulties in finding people to make up an investigatory or disciplinary panel at short notice, a Council could appoint individuals to sit on these, when it appoints its Committees in May

3.     Confidentiality

Employees who are being disciplined have a right to expect privacy, and for the matter not to be discussed amongst other Employees and Councillors.

All disciplinary matters must be addressed in a confidential environment and not discussed with other staff or Elected Members, which can be difficult in a small Council.

If the matter did leak out, the Employee could rightly claim that they had lost trust and confidence in the Council, and pursue a claim for Constructive Dismissal and resign from their post as a result of indiscretion.

Depending upon the nature of the breach of confidentiality, the Employee may also be able to accuse the Council of a Breach of their Statutory Rights under the Data Protection Legislation.

4.     New Evidence

A Council cannot introduce new evidence against the Employee either during a Hearing or less than two days prior to it, as there will be insufficient time for it to be properly considered.

5.     Gross Misconduct

If the allegation against the Employee is one of Gross Misconduct, the letter of invitation must warn them that the outcome could be dismissal.

6.     Being Accompanied

Employees are entitled to be accompanied by either another Employee of the Council, or a Trade Union Representative.

They are not entitled to be accompanied by a friend, family member, or their Solicitor.  If the Employee wishes to postpone the Hearing to enable them to arrange for someone to accompany them, the Council must make reasonable efforts to accommodate this request.  To ignore it and conduct the Hearing on the original date, with or without the Employee being present, would breach the Employees statutory rights.

However, the rearranged Hearing must normally take place within five working days of the original date.  Employees and their representative cannot keep putting the date back, and exceed the five working day limit.

PROFILE

Chris Moses LLM Chartered FCIPD is Managing Director of Personnel Advice & Solutions Ltd.  He is a Chartered Fellow of the Chartered Institute of Personnel and Development, and has a Master’s Degree in Employment Law. If you have any questions regarding these issues please feel free to contact him on (01529) 305056 or email p.d.solutions@zen.co.uk

www.personneladviceandsolutions.co.uk