Do you need to suspend the employee?
This area of law has been thrown into disarray for the past few years due in particular to the case of Agoreyo v London Borough of Lambeth.
In this example, the employee was suspended following allegations that she has used excessive force to get 2 pupils to behave. Under The Education and Inspections Act 2006, which was then revised in 2011, teachers are allowed to use ‘reasonable force’. The employee resigned and claim that the ‘knee-jerk’ suspension was a breach of trust and confidence.
In the first instance, the County Court used the long-established test of whether suspension was a reasonable and proper course in the actions that the employer undertook given the allegations. The High Court then overruled this, applying a new test of whether the suspension was ‘necessary’ given the speed of the suspension and that the employer had failed to get the employee’s side of events before making their decision.
The decision then went to the Court of Appeal. The Court of Appeal overturned the decision of the High Court and reapplied the test of whether the suspension was a reasonable and proper course of action. It overturned the decision by the High Court that the employer needed to show that the suspension was necessary and outlined that the High Court had erred in law with this test.
Each case needs to be judged on its own merits. There are several factors that an employer should consider before suspension is enacted:
- Consider what the allegation is and refer to your contract of employment and/or company handbook to see whether the incident falls into a situation that would require suspension.
- Have alternatives been considered before suspension? Could you relocate or reassign the employee whilst the investigation is carried out?
- If possible, get the employee’s side of the situation before considering suspension. Without their input, you only have 1 side of the situation and information available to you at that time may be limited.
- Ensure that you protect the employees confidentiality, as the the rumour mill could begin in the office. It is worth considering whether you want to have a story agreed with the employee should anyone ask. Generally, the employee is on ‘annual leave’ or ‘time-off’ is used as a standard story that gets circulated.
- Keep the employee up to date with the investigation. Whilst the suspension may have been justified in the first instance, a situation of continuous suspension without reasonable and proper cause could then give rise to a claim of breach of trust and confidence, should the employee feel this is the case. You should be decide on a regular basis whether the continuous suspension is necessary.
More useful articles: Making Staff Redundant –
How to complete the process.
How to investigate an employee and/or incident in the workplace?
The investigation is one of the most important stages of the disciplinary process. It is at this stage you are able to establish what has actually happened and start to build a picture of the full facts of the case before deciding what steps to take next. It is therefore important to keep a very open mind on the facts rather than jumping to conclusions because someone has told you something in the first instance.
The first thing to establish is which manager will conduct the investigation. Ideally, it won’t be the most senior person in the business as this person should be reserved for later stages such as disciplinary / appeal if the process advances to this stage.
During the investigation, it is important to gather the following information before deciding which way to move forward:
- Gather witness statements from any witnesses to the incident, and ensure they are signed and dated.
- Create a copy of any CCTV that may have captured an incident or that may be necessary for a fair process.
- Gather any documentation that would be useful to the investigation in establishing the facts of the case.
- Carry out an investigation meeting with the employee, ideally taking verbatim notes and having all parties sign and date them at the end once they have been read over to ensure they are a true account of what was said.
- If you are recording the meeting, you will need consent of all parties involved in line with GDPR Regulations.
There is no statutory right to be accompanied to an investigation meeting for the employee. However, you should consider your disciplinary procedures and if they outline a contractual right to be accompanied. If the individual should be allowed a colleague / trade union representative, a reasonable adjustment is necessary under the Equality Act 2010.
How to conduct a disciplinary hearing
Once the investigation has been completed, if the Investigation Officer makes a decision the matter needs to move to disciplinary, then there are a few recommended steps that should be followed in a fair process:
- Send all the evidence and information to the employee so that they can fully understand the decision to move to a disciplinary hearing.
- Formally invite the employee to a disciplinary hearing, setting out clearly the allegations against them, the right to be accompanied by a Trade Union representative or colleague as afforded them in Section 10 of the Employment Relations Act 1999 and the possible outcomes.
- At the meeting, ideally take verbatim notes. Ensure all parties sign and date them at the end, agreeing they have been read to ensure they are a true account of what was said.
- If you are recording the meeting, you will need consent of all parties involved in line with GDPR Regulations.
As mentioned earlier, ideally the disciplinary officer should be a different manager to the one that held the investigation, and someone not senior to the appeal officer. When deciding the outcome, the disciplinary officer is free to get advice from their internal HR, or even other managers based on their experience, but the final decision must be their own.
This became prominent in the case of Ramphal v the Department for Transport. In this case the HR department’s influence on the outcome potentially going from a final written warning to a gross misconduct allegation, was enough for the Employment Appeal Tribunal to conclude that the dismissal was unfair, as in this case, HR had gone beyond advising.
The outcome of the disciplinary hearing should be communicated in an effective manner. We advise a two-pronged approach.
- Verbally over the telephone or in person.
- Email or post the letter to the employee. If you email it, it is recommended the read receipt is turned on. If you post it, do so via recorded delivery.
Within the outcome letter, there should be a section that notifies the employee of their right to appeal. The timeframe for the appeal and how it is conducted should be governed by what is outlined in your policies and procedures in your contracts of employment and/or company handbook.
More useful articles: Making Staff Redundant –
How to complete the process.
Disciplinary Investigation – How to handle an appeal
As mentioned earlier, the appeal person should be someone who has not been involved in the process to date and is coming in with a fresh set of eyes. This supports the employer with the view that the process they have undertaken has been a fair process throughout.
There are two ways in which an appeal can be conducted.
- By way of a table-top review of all the evidence and the appeal that the employee has put forward.
- By way of a rehearing to go through all the evidence again and to consider the points the employee may have put forward in their appeal letter.
Before choosing which option to proceed with, refer yourself to your policies and procedures to ensure that you are following these. This avoids any argument of a breach of trust and confidence from the employee.
- Table-Top Review: If your policies and procedures allow it, it may be appropriate to carry out the appeal without another hearing. These can be in situations where the employee has failed to put forward significant or any evidence to support why the decision was wrong at the disciplinary stage. Each case should be judged on its own merit as to whether a table-top review is appropriate.
- Rehearing: It may be appropriate that, given the evidence put forward by the employee in their appeal, a rehearing takes place. This ensures the new manager for the appeal can get first hand knowledge of everything that has occurred and go over all the points the employee has raised in person, so that probing questions can be asked there and then.
As with all formal meetings, it is ideal verbatim notes are taken of the meeting, and/or consent sought if you are looking to record the meeting.
Once the appeal manager has made a decision, following review all the evidence, it should then be conveyed to the employee. Again, this can be done with a verbal notification and/or email/letter outcome to the employee.
The appeal is the final stage that the employee can go through to overturn the decision within the organisation. If the decision has led to a termination, their next course of action, if they feel the dismissal has been unfair, is to raise a claim with ACAS. The employee can only raise a claim for unfair dismissal if they have over 2 years’ service, unless they feel the dismissal was limited to a reason that does not require this length of service e.g. discrimination, whistleblowing etc.
It must be noted, if an employee is dismissed for gross misconduct and doesn’t have 2 years’ service, they could still claim for wrongful dismissal, which is to sue the employer for their notice pay.
