Potential misconduct – advice on disciplinary procedure processes

FROM time to time, an employer might want to take disciplinary action against an employee for any one of a number of reasons.

Image: Lucian Milasan / Adobe Stock

To be successful, however, it is important for employers to have clearly defined disciplinary procedures in place, and then to follow them when dealing with acts of potential misconduct. 

Duty of mutual trust and confidence

An implied term in all employment contracts states that employers and employees have a duty of mutual trust and confidence. If this duty is breached, the innocent party can claim that this is a fundamental breach of the employment contract.

If an employer breaches the duty, the employee can terminate his or her employment by reason of the employer’s conduct under the Employment Rights Act 1996, and he or she may then have grounds to bring a claim against the employer in the Employment Tribunal for wrongful dismissal. 

To bring a claim for constructive dismissal, the employer must be in “repudiatory breach” of a term of the contract. This means a breach so fundamental, it goes to the root of the contract.

The employee must then show he or she resigned in response to the relevant breach. The breach can be a singular act, or made up of a number of acts or events that accumulate over time, leading to “the final straw”. 

Suspension

Employers should have a disciplinary policy in place that clearly sets out the course of action they will take if an employee is suspected of acts of misconduct. This policy does not have to be part of the employment contract, but should be in a separate document that employees are all referred to when they start their employment.

In the majority of cases, if an employer needs to carry out an investigation into an employee’s conduct, the employee should be able to continue working for the employer, even if adjustments should be put in place. Suspension should not be a “knee-jerk” reaction and employers should only suspend if there has been a serious allegation of misconduct that means it would be impossible for the employee to continue in his or her role while the allegations are being investigated. 

If it is necessary to suspend an employee, he or she should be sent a letter that includes the reasons why he or she was suspended and how long it might last, rights and obligations he or she has during the suspension, and a statement that the suspension does not imply the employee is guilty of anything. The suspension should also not last longer than is necessary to carry out an investigation. 

Steps to be taken

• If an employer expects an employee may be guilty of misconduct, a number of steps should be taken by the employer:
• Decide whether the matter could be dealt with informally. Would it be enough to hold a private conversation with the employee to clear matters up? It may be he or she is able to explain his or her behaviour and matters need not proceed further.
• If a more formal approach is required, the employer should go through a fact-finding process. This can be a formal investigation, or it can be a simple process of establishing the facts. It is important, however, to keep a record of any steps taken as part of this process.
• It may or may not be necessary to suspend the employee during this time. Even if the employee is not suspended, he or she should be informed in writing of what is happening and what the allegations of misconduct are. 
• A meeting should be held with the employee to allow him or her to present his or her case. The employee has a right to be accompanied to this meeting by either a trade union representative or colleague. 
• lThe employee should be informed of the result in writing. This could mean no further action is taken, a first warning or recommendation for further training is issued, or a final warning or dismissal is the necessary sanction. 
• The employee must be given the opportunity to appeal the decision. Even if a first warning is issued, the employee has a right to appeal this as, although it may mean no further action is needed, it will still form part of that employee’s disciplinary record and could, therefore, count against him or her at a later date. 

It is difficult to ensure all of these steps are followed when dealing with a small business. However, it is important to keep the employee informed when any disciplinary process is being undertaken.

Conclusion

Employers are entitled to suspend employees if it is necessary for them to fully investigate acts of misconduct. However, it is important to remember that employers and employees remain bound by the employment contract during periods of suspension. This means the duty of mutual trust and confidence should not be undermined, which, in turn, means a documented disciplinary procedure should be followed, if required.

It is essential employees should be kept informed of what stage of the process has been reached and the suspension should not last longer than is reasonably necessary. Smaller businesses may be given more leeway in terms of the resources available to them in terms of a formal process, but the clearer the process that will be followed when employers expect misconduct, the easier it will be for them to be able to show an employment tribunal they have followed a fair process and not breached employee rights.

• This article first appeared in Vet Times Volume 50 Issue 9 Page 17.
• Mark Stevens is a senior associate in the employment team at VWV.