July 14, 2021

Disciplinary investigations – the importance of policies, preparation and documentation

Holmes & Hills’ team of Employment Law solicitors discuss disciplinary policies and procedures following a recent case that went against the employer.

A recent Employment Tribunal case provides a reminder of the importance of employers having clear disciplinary policies and carrying out full and thorough investigations even in apparently “straightforward” cases.

Background to the recent disciplinary case

Colin Kane was seen by a colleague attending a social club when he was absent on sick leave. When contacted by telephone by a manager Mr Kane said he had been in bed all day with a bad chest. There was later confusion surrounding the date of the phone call. Mr Kane later admitted being at the club on both days.

The employer wrote to Mr Kane inviting him to a disciplinary meeting and stating that he was accused of breaching the employer’s disciplinary rules, although it was noted by the Tribunal that no witness statements supporting the employer’s case (that Mr Kane had been at the club) were included with the letter.

Following a disciplinary meeting, Mr Kane was dismissed. His appeal against dismissal (based partly on the grounds that other employees had visited the club and not been disciplined) was rejected.

Employment Tribunal decision

In what might be viewed as an unusual decision, the Employment Tribunal found in favour of Mr Kane and ruled that he had been unfairly dismissed.

Points noted by the Tribunal are a sober reminder to employers of the need to follow strict procedures when conducting disciplinaries and not to be tempted to relax procedures in apparently “obvious” cases. Points of note:

  1. As referred to above, inadequate preparation of the employer’s case ahead of the disciplinary meeting.
  2. Inadequate evidence gathering and preparation of witness statements.
  3. The employer could point to no specific clause within its disciplinary procedure which stated that an employee could not socialise “in whatever way they deem appropriate whilst absent from work through illness”.
  4. The absence of properly prepared written accounts created confusion over dates and times.
  5. The manager who received the initial complaint about Mr Kane also conducted the disciplinary. This was criticised on the grounds that a separate manager not involved with the initial investigation should conduct the disciplinary.

Comment from an Employment Law solicitor

The overriding lesson for employers is that where a genuine belief is held that an employee is guilty of misconduct, that belief must be based on “reasonable grounds”; an employer must be able to produce evidence later which supports their findings and the genuine belief held.

Employers are reminded that they should regularly review their policies and procedures, including in relation to disciplinary and dismissal.

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Holmes & Hills Solicitors has a team of specialist Employment Law solicitors in Essex and Suffolk providing expert Employment Law advice to employers across East Anglia.

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