DISCIPLINING? HERE'S WHAT OFTEN GOES WRONG...
Released On 5th Aug 2022
As employment lawyers, you can imagine that we advise plenty of clients who are dealing with disciplinary processes. More often than not, the substantive reason behind the decision to take action is absolutely justified. What tends to go wrong is an error in the process along the way.
As a little Friday treat, we thought we’d impart some wisdom around the common errors which could land you in hot water.
Going formal too quickly
Whilst undoubtedly some things demand the formal disciplinary process, there’s definitely a time and a place for informal action too. Don’t overlook it as otherwise, it could lead to potential constructive unfair dismissal claims.
Making assumptions
The key with any disciplinary process is to assume innocence until guilt has been proven. All too often we see an allegation being taken as fact when instead, there needs to be a balanced and fair investigation designed to get to the truth. What that looks like will vary with each case so if in doubt, ask us for a sense check as to whether you’ve likely done enough.
Ignoring reasonable requests
Yes, you want to get this over and done with as quickly as possible. But if the employee asks for a few extra days to prepare, is it really that disastrous? Always put yourselves in the shoes of the Tribunal Judge. He or she will want to know why you couldn’t allow it, so give yourself some easy wins on the reasonableness front. Likewise, if the employee directs you to some potential evidence, ignore it at your peril. It might not be relevant, but show you have considered it and why you have discounted it.
Poor phrasing of disciplinary allegations
This is one of the crucial aspects of any disciplinary process. Phrasing it properly will mean the difference between being able to uphold an allegation and having to give someone the benefit of the doubt. For example, we see the word ‘fraudulently’ banded around in allegations all the time.
Fraud is a really high bar and naturally employees take great exception to it; you are suggesting that someone has been wilfully deceitful when more often there has been an error in judgment, carelessness or ignorance.
Think carefully about your allegation wording and what is actually demonstrated by the evidence available. The success of a disciplinary process often hinges on really well-crafted invitation and outcome letters.
‘Informal’ communications
NEWSFLASH: beware the Subject Access Request! Do not put anything in writing that you are not prepared for the employee to read. Yes, this includes emails, text messages, Teams Chat, WhatsApp. All potentially disclosable and if there is evidence of pre-determination or influence from third parties, you risk an unfair dismissal finding irrespective of you otherwise following the best process in the world.
We’re always here to help with disciplinary matters, whether you want a second opinion, the whole process managed from start to finish or advice on a specific aspect, such as the appropriate sanction. Feel free to get in touch with any member of the team.
Here’s to the weekend; enjoy the sun!
