How to manage atypical disciplinary processes

Issues of misconduct can
be difficult for employers
to deal with, no matter
what their size, sector, or
public profile.

The recent ‘dismissal’ of three judges and resignation of a fourth, involving allegations of viewing pornographic material while at work, made headline news and provoked debate in the legal and business communities.

But for small businesses, as well as those in the public eye, dealing with allegations of misconduct can cut deeply
and put working relationships
at risk. In turn, that can cause widespread and long-lasting damage to the organisation.
This can be even more disruptive when the allegations are against senior employees.

ACAS code

When dealing with misconduct queries, it is not always possible or correct to adopt a ‘one size
fits all’ approach. The Advisory, Conciliation and Arbitration Service (ACAS) code of practice on disciplinary and grievance procedures provides guidance for employers. It is then for employers, with the assistance of their legal advisers, to interpret the code and to adopt a process that is both fair and reasonable
in the circumstances.

That does not mean a failure
to comply with or follow any part of the ACAS guidance will render any disciplinary action unfair,
but any perceived failings will
be taken into account when considering the reasonableness of the employer’s actions (section 207 of the Trade
Union and Labour Relations (Consolidation) Act 1992).

Usually, the ACAS code will have been interpreted into an employer’s adopted policies, but even then an employer who relies on a procedure which is deemed to be unreasonable or not interpreted fairly may still be at risk. When dealing with chief executives or senior managers, for example, the standard policy may be impossible to apply or simply not appropriate.

Where allegations are
made, especially those made by subordinate employees against senior colleagues, a timely and reasonable investigation is usually the first action.
This may not be a comprehensive investigation, but must be sufficient to determine the validity and potential impact
of the allegations, and conducted with an open mind. Depending on the circumstances of
the allegation, it may be
appropriate at this stage to consider suspending the
accused employee.

Reasonable investigation

Although suspension is not a disciplinary action in itself, it can have detrimental consequences, not least if the position of a senior employee is undermined or their reputation irreparably affected. ‘Innocent until proven guilty’ is
as important in the workplace
as it is in criminal investigations,
and no decision should be
taken until a fair and reasonable investigation has been concluded.

Other factors when considering suspension might include whether the business
can continue without that person, and whether there is a risk they may interfere with an investigation or intimidate other potential witnesses.

The depth of an investigation depends on the seriousness of the allegations and the potential outcome. In cases of gross misconduct, where dismissal is
a possibility, the investigation should be more thorough, and where a defence is put forward
by an employee, the extent of
the investigation should be considered, depending on
the circumstances as a whole.
This was the case in Shrestha v Genesis Housing Association
Ltd, where the Court of
Appeal considered how far
an investigation should go for any outcome to be within the range of reasonable responses.
This case involved an employee alleged to have made fraudulent claims for mileage expenses, suggesting that journeys took twice as long as the AA and RAC suggested. An appeal by the employee suggesting that every journey should be re-made to check for diversions and road works was not considered to be necessary to a fair investigation.

Determining who should conduct a disciplinary investigation and ultimately determine if and what disciplinary action is necessary can be difficult. It is normal practice for someone senior to the employee being investigated to make such decisions, and sometimes this might be referred to a board or a small committee of senior employees.

Third-party involvement

Referring an investigation to a third party should be a last resort. Sometimes, however, there may be no alternative. In such situations, who is used should be carefully considered and the reasoning for the decision recorded. A suitably qualified third party might include a HR professional, a senior employee from a group company, or someone with sufficient experience and standing in the sector. In these circumstances,
it is important that there is ‘buy-in’ on both sides.

When advising employers,
it is important to consider
any characteristics of the organisation that might make
a ‘standard’ process inappropriate or even inapplicable. All those involved in a disciplinary
process must understand what procedure will apply, how it
will be managed, and by whom. Communicating this effectively should reduce the opportunity for appeal and, ultimately, any tribunal claims. SJ

Kevin Poulter is SJ's editor at large and a legal director at Bircham Dyson Bell