By Martha Arnold, Employment and HR Lawyer, Fox Williams LLP
I am an HR Manager for a medium size company and I have just come back from holiday to a stack of disciplinary matters. Can you help me with a couple of matters which are causing me a real headache:
1. A male employee has complained about an argument with a female employee. As far as I can tell, no-one witnessed the row. I have interviewed both and there is a lot of “he said / she said”, and each person’s evidence contradicts the other’s. I don’t know who to believe or how I can reach a conclusion.
2. An employee was invited to a disciplinary meeting but immediately raised a grievance. His grievance was rejected and he submitted an appeal. We want to proceed with the disciplinary meeting before the grievance appeal, but he is refusing to co-operate until the grievance process has been exhausted. What do I do?
Finally, we are considering revising our contractual disciplinary and grievance policies and wondered if you had any specific tips?
It’s a good thing you asked as cases concerning the conduct of disciplinary procedures have been flooding into the Employment Tribunals recently.
1. Problems caused by lack of evidence
Investigation is a key part of the disciplinary process. The level of investigation should be reasonable in the circumstances of the case. It is particularly important that a thorough investigation is carried out where the employee’s reputation or ability to work in his or her chosen field of employment is in jeopardy. The investigation should be unbiased, investigating both angles which may show the employee’s innocence as well as his guilt. The steps taken to investigate should be documented. In misconduct cases, different people should carry out the investigation and disciplinary where practicable.
There has been a recent case regarding inconsistencies in evidence (Salford Royal NHS Foundation Trust v Roldan ). This has highlighted that:
• Where a witnesses evidence has inconsistencies within it, it will be extremely important for the employer to test that evidence before relying on it. This is particularly so where the employee facing disciplinary action has a previously unblemished record, and dismissals which are heavily reliant on inconsistent evidence are unlikely to be fair.
• Where the evidence is inconclusive one way or the other, the proper response is for the employer to confirm that they are not able to resolve the conflict of evidence. However, in such a circumstance the employer must not go so far as to say that they do not believe one or both of the individuals.
In your case, the investigation must be handled carefully. It would be very risky to assume that the accused’s evidence should carry less weight on the assumption that she may lie in order to avoid disciplinary action. Instead, consider the following steps: meeting with both witnesses again and asking them to explain the inconsistencies and respond to the evidence of the other. If the evidence remains inconclusive, then you may have little option but to inform the employees that you are unable to resolve the dispute because of the conflicting evidence. You might then want to monitor their relationship to try and prevent future arguments.
2. Interrelation between grievances and disciplinary proceedings
The ACAS Code gives employers two options for dealing with overlapping grievance and disciplinary issues. It states that where an employee raises a grievance during a disciplinary process:
(i) the disciplinary process may be temporarily suspended in order to deal with the grievance; or
(ii) the grievance and disciplinary may be run concurrently where they are related.
The employer ought to record in writing its rationale for its decision.
In Samuel Smith Old Brewery (Tadcaster) v Marshall  an employee faced disciplinary action for refusing to carry an instruction. The employee submitted a grievance asserting that the instruction was unreasonable and was in the process of appealing the grievance decision when the employer went ahead with the disciplinary meeting and dismissed the employee. The EAT decided that it was not necessary for an employer to suspend the disciplinary hearing pending the outcome of the grievance appeal and that the dismissal that resulted was fair.
When drafting the new policy it is very important to reflect the principles enshrined in the ACAS Code as well as providing for practical issues pertaining to your organisation. We provided some tips for drafting new policies here.
From an employer’s point of view, it is preferable that disciplinary policies do not form part of the terms and conditions of employment. However, in the contract of employment the employee should be under an obligation to comply with the policies of the employer. This way, employees do not have an expectation that the employer is contractually bound to follow the policies set out, although of course in most cases it will be best practice to do so.
It is important that the status of the policies is couched in this way is to avoid claims for breach of contract arising from the employer departing from the terms of the policy. A recent case, Edwards v Chesterfield Royal Hospital NHS Foundation Trust , has highlighted that such a claim can be brought and can potentially be very costly.
In the Edwards case, a surgeon brought a claim against the relevant NHS trust on the basis that there was an express contractual entitlement to a specific disciplinary procedure to be followed, that this had been breached, that this breach had resulted in a finding of misconduct and that this had resulted in him being unable to find permanent NHS employment and caused loss over the duration of his career of approximately £4million.
The Court of Appeal confirmed that an employee’s recoverable losses in such a case are potentially not limited to his notice monies or to an unfair dismissal claim. An employee seeking to run such a claim will have an onerous burden to discharge in proving that: there is an express contractual right; the right has been breached; the breach has resulted in the finding which has led to dismissal; and he or she as a result cannot mitigate their loss.
Martha Arnold is an employment and HR lawyer at Fox Williams LLP. She can be contacted on firstname.lastname@example.org or 020 7614 2650.
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