Guides

Disciplinary Investigations and Dismissals – Avoiding the Pitfalls and Protecting Against Unfair Dismissal

Paul Bownes, Weightmans, Leicester

One of the most common types of claim brought against employers in the Employment Tribunal is unfair dismissal. Unfortunately, it is often the case that the defence of such claims is hampered by basic procedural issues which have to be addressed as well. Indeed, procedural issues alone regularly mean that an otherwise fair dismissal is found to be unfair by a Tribunal. Ensuring that a fair and transparent process is followed can go a long way to obtaining a judgment in your favour if a claim is brought following dismissal.

Investigations

Though it is ultimately the decision to dismiss that is assessed by a Tribunal when considering an unfair dismissal claim, there should also have been a fair and reasonable investigation before that stage. Some of the key matters that should be addressed as part of a fair investigation are as follows:

• Be clear about what is being investigated, why and who should be the investigator
• Think carefully about what evidence may need to be looked at
• Consider whether suspension is necessary either during or after investigation
• Produce an investigation report clearly identifying the conclusions and recommendations

Disciplinary Procedures

Employers are required to follow the ACAS Code as a minimum in order to demonstrate that a disciplinary procedure is fair, and failure to do so can lead to an uplift of up to 25% in any compensation awarded for unfair dismissal. Key considerations for a fair process include:

• Produce a clear and thorough disciplinary invite which sets out the allegation(s), explains the right to be accompanied and, as appropriate, warns that dismissal could be an outcome
• Disclose the evidence to the employee sufficiently ahead of the hearing so they properly understand the case against them
• Ensure that the disciplinary hearing is scheduled and run fairly and impartially
• Carefully consider any mitigation put forward and what sanction is appropriate to the findings which are made
• Clearly communicate the decision, the outcome and the relevant reasons
• Offer the right to appeal

There is no one right way to run a disciplinary investigation or subsequent procedure, each individual case is judged on its own merits and the surrounding circumstances and can often be complicated by an individual’s reaction to the process, for example stress related absence. It is however vitally important that the process is done correctly and therefore if you would like more information or wish to obtain advice, please do not hesitate to contact Paul Bownes on 0121 616 6578 or Paul.Bownes@weightmans.com.

In addition, the EM Lawshare Employment Law Updates on 11 January 2018 (Leicester) and 14 February 2018 (Birmingham) will include detailed sessions on conducting investigations in the workplace from Paul Bownes and Victoria Duddles of Weightmans.

NOTE: These ‘Quick Guides’ are issued when an EMLS member has raised a query with a partner firm via the free phone helpline service & the issue is thought to be of wider interest. The guides are not intended to be a substitute for detailed legal advice.