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Rebecca Dennis of Goughs

Disciplinary process: external influence and disclosure obligations

How often does an employee try to postpone a disciplinary hearing and why do they do that? It happens regularly, doesn’t it?

Frequently an employee will seek to raise a grievance to obfuscate the issues and create a delay thus maintaining employment for the duration of the process.

In a recent case the employee, who was a professional and subject to the rule of a professional governing body, applied to the court to seek restrain the employer from proceeding with a disciplinary process in order to await the outcome of a decision by that external body.

The Tribunal refused the application on the basis that an employer is not bound to defer to or to be bound by the decision of a professional governing body when a disciplinary procedure forms part of the contract of employment.

An employer can control and determine its own investigation and disciplinary processes as long as the process is fair, transparent and not discriminatory in effect.

So, what about grievances as a delaying tactic? Should you press ahead with the disciplinary?

The answer is that it is usually best practice to pause the disciplinary process. This ensures that the grievance process is dealt with in full and that any issues which are or might arguably be related to the disciplinary process can be identified and properly ventilated.

And what are your disclosure obligations during an investigation and disciplinary process?

In a recent case the internal process stated that the employee was entitled see ‘any correspondence relating to the case’.

The employee argued that this included all documents, statements and correspondence relating to the subject and the general subject matter of the investigation.

The employee argued that the disciplinary process could not go ahead until this material had been disclosed.

The Tribunal disagreed and concluded that ‘any correspondence’ in this context meant communications from one person to another and not everything involving the subject matter of the investigation.

So, what are the conventional disclosure obligations during a disciplinary process?

Once an allegation of misconduct or poor performance has been raised, an employer has to establish the facts of the case. Ideally, this investigation process should be performed by someone who will not be deciding the case.

An employee should be invited to attend an investigation meeting. There is no right to be represented at this stage. Once the evidence has been collated then the employee should be invited to attend a disciplinary hearing and to be represented at this hearing.

The letter of invitation should set out the allegations and make full disclosure of the supporting evidence. The quality and scope of the evidence is of course critically important for fairness in general.

Evidence is the only platform from which a safe dismissal can be made. Please remember that an employee is entitled to read and digest this evidence in advance of the disciplinary hearing and they are entitled to challenge it and to present their own evidence at the hearing.

So, you should be prepared to make complete disclosure of all the available evidence that has been acquired during the investigation.

This might necessitate redaction of documents where third parties are involved. It might also require disclosure of material which is controversial or which tends to support the employee’s version of events and upon which you do not fully rely.

Remember that the decision-maker will also need to evaluate all the evidence. The decision-maker must make informed findings of fact on the basis of which account is more reliable (and probable) and to consider all points of mitigation that are advanced or which are found to exist.

Rebecca Dennis heads the Employment Law team at Goughs Solicitors www.goughs.co.uk

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