Discipline and Grievance

by Kate Russell

Before the disciplinary interview

Before a disciplinary interview, the necessary groundwork must be completed.

Investigation

If you know (or think you know) that there is a disciplinary problem, you must carry out an investigation to collect, collate and review the relevant facts. The investigation is not part of the formal disciplinary process. Ideally, the investigation should be carried out by someone other than the person likely to chair any disciplinary hearing, although this is not always possible, especially in small firms. It’s not a legal requirement to do so.

If a staff member charged with or convicted of a criminal offence refuses to cooperate with the investigation, don’t be deterred from taking action. He should be advised in writing that unless further information is provided, a disciplinary decision will be taken on the basis of the information available. This could result in dismissal.

Carry out the investigation promptly to find out all the relevant facts before memory fades. Include anything the employee wishes to say. If, in serious cases, there are witnesses, take statements from them at the earliest opportunity. Make sure the statements are written, dated and signed. Everyone should be clear precisely what the complaint is.

What happens if the facts are not in dispute? Although in a few rare cases an admission will negate the need for an investigation, it’s always good practice to investigate as thoroughly as possible to gain the best possible understanding.

Example

Nena Okoro was employed as an assistant catering manager, with 17 years of unblemished service. When the unit at which she worked was presented with an iPod Nano as a corporate gift, Miss Okoro asked her line manager, Mr Cannon, if she could take it home. He refused, but Ms Okoro took it anyway.

Mr Cannon discovered that the iPod was missing and asked about it, but Miss Okoro would only say that she knew where it was and that she knew who had taken it. Two weeks later, she admitted that she had taken the gift as a joke and returned it unopened.

In light of Miss Okoro’s admission, her employer, Compass Group, did not investigate and proceeded to a disciplinary hearing. Miss Okoro was dismissed for gross misconduct because she had removed company property and Compass Group considered this theft. An employment tribunal decided that Miss Okoro’s dismissal was unfair.

The law requires that employers carry out ‘as much investigation as was reasonable in the circumstances of the case’. It also states that because certain behaviour could be categorised as gross misconduct, this does not mean that dismissal will always be reasonable.

The EAT upheld the tribunal’s decision. As Compass Group had not investigated Miss Okoro’s contention that she had taken the iPod as a practical joke, it could not be said that she had committed theft.

The court said that in some cases, an employee’s admission will be enough. No further investigation will be necessary. In other cases, further investigation will be required. Which applies will depend upon the circumstances of each case.

Checklist on investigation.

You should be rigorous in your investigation. Guidance is given in a three-part test laid down in British Home Stores v Burchill [1980]:

  • Do you have a reasonable belief that the employee is guilty?
  • Do you have reasonable grounds for that belief?
  • Have you carried out as much investigation as is reasonable in the circumstances?

Arguably the burden of proof has increased for employers where the matters under investigation are serious and could result in very severe penalties for the employee

Example

Ms Roldan was a nurse from the Philippines working for the NHS. She had four years of service when a healthcare assistant, Ms Denton, complained that Ms Roldan had mistreated a patient. Ms Roldan was told that a serious complaint had been made against her and was suspended.

During the investigation, Ms Denton was interviewed and completed an incident report; Ms Roldan and her supervisor were also interviewed. After hearing the evidence, the disciplinary panel dismissed Ms Roldan for gross misconduct. The panel stated that it accepted Ms Denton’s evidence and preferred it to Ms Roldan’s evidence, which it found to be inconsistent. The Trust rejected her appeal. As a result of the summary dismissal, Ms Roldan lost her work permit and therefore her right to work in the UK. She was the subject of a criminal investigation by the police. She complained that the dismissal was unfair.

The Court of Appeal agreed. One of the matters it considered in deciding whether the investigation was fair and adequate was the consequence for Ms Roldan of a finding of unfair dismissal. It said that, given that dismissal would lead to her deportation, a more careful investigation should have been carried out. This was particularly important because Ms Roldan had a previously unblemished record over four years of employment with the Trust.

Where there are allegations of misconduct, and there are two opposing accounts of an incident with little or no corroborative evidence either way, employers are not required to believe one employee and disbelieve the other. It is perfectly proper for the employer to say that, whilst not disbelieving the complainant, it has found the case against the accused to be ‘not proven’. The benefit of the doubt is therefore given to the accused.

Witnesses

In some cases it will be necessary to take statements from witnesses. Take the statements as soon as possible after the events, while the facts are still clear in the minds of witnesses. Include only information on what the witness directly saw, experienced or heard: for example, ‘I saw Jane running away’. Exclude hearsay evidence, such as ‘John told me that he saw Jane running away’.

Ask the witness to name or describe any other persons who were present and might have witnessed the incident(s). Ask the witness to describe what happened, but do not include the witnesses’ opinion on how persons involved in the event were thinking or feeling (for example, ‘x was standing by the door and talking very quickly’ is OK, but not ‘x was very nervous and seemed anxious to get away’).

Checklist for taking a witness statement.