It is common for employers to ask ‘can the same person conduct both the investigation and disciplinary? The answer is yes, the same person can carry out both the investigation and the disciplinary hearing. However, it is important to consider any policies that are in place and the way in which those policies affect the way that things should be done. Furthermore, if possible, the investigation and disciplinary hearing should be carried out by different people. This approach is recommended by the ACAS Code of Practice on Disciplinary and Grievance Procedures. For more information on what is the ACAS Code of Practice? Read our blog.
The ACAS Code of Practice on Disciplinary and Grievance Procedures provides guidance for employers on the principles that should be followed in order to ensure that employees are treated fairly. As well as being of assistance to employers, the Employment Tribunal will take this code of practice into account. For example, if either party unreasonably fails to follow the code, an award can be increased or decreased by up to 25% to reflect that non compliance. The ACAS Code of Practice highlights the principles which would indicate that an investigation was reasonable. For example, it is important to ensure that the matter is investigated fully before deciding that a disciplinary hearing would be appropriate.
If an employee pursued a claim of unfair dismissal, the Employment Tribunal will decide whether the decision to dismiss was fair. In reaching that decision, the Tribunal will take into account the size and administrative resources of the organisation. This emphasises that what is appropriate depends on the circumstances of the individual case. However, it may well be considered particularly appropriate for large employers to have the investigation and disciplinary hearing carried out by different people.
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The Purpose of a disciplinary investigation
An investigation is a fact-finding exercise designed to establish what happened before any decision about disciplinary action is made. It should be considered and objective. The investigating officer gathers evidence, interviews witnesses, and compiles a report outlining findings. Crucially, the investigator should not determine guilt or impose sanctions; their role is to gather evidence and to express a view on whether the matter should progress to a disciplinary hearing or not.
The purpose of the disciplinary hearing
The disciplinary hearing is a separate stage where the evidence gathered during the investigation is reviewed, and the employee has the opportunity to respond. A decision-maker evaluates the evidence, considers mitigating factors, and determines whether a disciplinary sanction should be imposed and, if so, which sanction would be appropriate in the circumstances. The options available to the disciplinary panel range from no action to dismissal, depending on the severity of the misconduct. For more information on is an investigation meeting the same as a disciplinary hearing? Read our blog.
The ACAS Code stresses, among other things, that employees must be given the opportunity to state their case and to be accompanied at the hearing by certain individuals, such as a work colleague or trade union representative. The disciplinary panel must approach the matter with an open mind, and it may be challenging for that to be possible if the person responsible for deciding on potential sanctions was also heavily involved in the investigation.
The risks of combining the roles of investigator and disciplinary hearing chair
When one person conducts both the investigation and the disciplinary hearing, several risks arise. For example, the person may have formed a strong view, at the investigation phase, whether there should be a disciplinary sanction and, if so, what that sanction should be. In such circumstances, it may be the case that, when performing the role of disciplinary hearing chair, the person did not properly engage with the employee’s case or consider evidence that supports the employee’s version of events. Such failings may well be contrary to the principles of the ACAS code and be a factor that ultimately results in an Employment Tribunal concluding that the dismissal was unfair.
The importance of an appeal in the disciplinary process
The right to an appeal is an important safeguard and this is highlighted in the ACAS Code. Ideally, the appeal should be heard by someone not previously involved in the process. Depending on the applicable policies, the appeal may simply review the decision that was made or there may be the potential to approach issues more broadly. Where roles have been combined, an appeal becomes even more important. This is because an effective appeal could resolve any flaws or failings within the disciplinary process.
The importance of documentation in the disciplinary process
Thorough documentation is essential in any disciplinary process. Employers should maintain clear records of the investigation, disciplinary hearing, and decision-making rationale. As well as explaining the rationale for the approach adopted, and the decision that was made, documentation can be of assistance when establishing the scope of each role. For example, whether or not the investigator was involved in the process after the investigation phase had been completed.
Ultimately, the key issue is whether the employer acted reasonably in all the circumstances. There are various steps that should be taken such as implementing robust procedures. However, the issues can be complex to navigate, and professional advice or training may well be useful.
Plotkin & Chandler works exclusively in the areas of HR and employment law.
If you are an employer who would like advice on disciplinary matters, you would like assistance with carrying out an independent investigation, undertaking a disciplinary hearing, you would like to discuss training for your organisation or you need assistance on defending an Employment Tribunal claim, we can help.
If you are an employee and would like advice on the disciplinary process or you have been dismissed and would like to discuss bringing an Employment Tribunal claim, we can help. Please contact us on 020 3923 8616 to discuss your needs and requirements or email us on info@plotkinandchandler.com
