Discipline Q&A

Q I have to have a disciplinary meeting with an employee for a serious allegation which may result in their dismissal.  I am concerned that this employee will secretly record the proceedings of the disciplinary hearing, but can this be used at any subsequent tribunal hearing? If yes, should I secretly record it as well?

A Historically, covert recordings were not admissible as evidence in court but over the years Employment tribunals have been taking a relaxed view on the evidence which is allowed. This is particularly true if there is a claim of discrimination, and covert recordings of disciplinary hearings may be accepted as evidence. Generally, the only recording that the employee may not use as evidence are the deliberations of the disciplinary panel. Even if your company policy does not permit such recordings, this may be overturned by the tribunal which may allow it as evidence.

The employer should not record the meeting secretly either as it may be a breach of privacy under the Human Rights Act and represent sensitive data under the Data Protection Act. It can be justified in exceptional circumstances, for example where suspected criminal activity has taken place.

The easiest way to deal with this is to permit the meeting to be recorded by both parties. This can be a problem if you have an inexperienced disciplinary manager. It is very important to ensure that good practice and appropriate procedures are followed at the disciplinary hearing meetings, including the taking of notes by a neutral person, which can then be shared with both parties afterwards.

Q Are there any circumstances in which the investigation officer can also carry out the disciplinary hearing, or the disciplinary manager hear the appeal?

A The ACAS Code of Practice provides that in misconduct cases, where practicable, different people should carry out the investigation, disciplinary hearing and the appeal stage. The tribunal will take into account the employer’s size and the administrative resources available to it when determining whether or not it is practicable to comply with this requirement. Companies with only one or two managers will need to double up or employ an external consultant if they can. If a manager has to cover both roles it is best to keep the Appeal Manager independent. 

Performance management procedures are less stringent, but it is nonetheless good practice to keep all levels independent.  

Q Should I suspend an employee as a precautionary matter whilst an investigation into disciplinary allegations takes place?

A Suspension should not be taken lightly as it can give the impression of guilt and you should avoid a “knee-jerk” response of suspending the employee before considering other options, especially as working from home is now common. If suspension is necessary so as not to taint the investigation, you should make it clear to a suspended employee that this is not a disciplinary act. You should suspend for as short a time as possible and on full pay and benefits.  Care should be taken in telling other employee’s why the suspended employee is absent so as to avoid implying that the suspension indicates disciplinary action and any prior assumption of guilt. It is good practice to agree what is said with the employee concerned. 

The Court of Appeal has ruled on suspension and they say that the proper test for determining whether an employer can lawfully suspend an employee is whether or not this is a “reasonable and proper” response to the allegations. This is unclear and ambiguous for non-legal managers, so you may wish to see (see link to section in discipline) or speak to a qualified consultant on insert contact information.

Q We have an employee who has taken a day off and phoned in sick but then posted images of himself at a public event on social media on that day. How should I deal with him?

A You should have a policy on absence and should ensure that your employees understand it. Hopefully you have sick absence records which can be useful in presenting facts at any possible later formal meetings.  This is potentially an abuse of the sick pay arrangements (whether SSP or additional company sick pay) and as such is a potential disciplinary offence. You should follow the disciplinary procedure and investigate. It may be that he is able to socialise but not fit to work. It will depend on the job and the reason for absence. Note also, that employees on long term sick are able to take holidays if it is not contrary to the sick absence reason.  

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