Managing workplace investigation and disciplinary procedures for employee dismissal
An organisation may start a disciplinary procedure that adheres to the ACAS rules when it accuses an employee of misbehaviour. Any official disciplinary hearing will provide the employee with the option of having a coworker or union representative present. Any charges of wrongdoing must be thoroughly investigated by the organisation, and the employee must be given the chance to provide their side of the story. A grievance or unfair dismissal claim against the company, which may ultimately be heard by an employment tribunal, may be brought if a fair procedure is not followed. When there has been serious wrongdoing, the employer has the right to suspend the worker while a thorough inquiry is conducted.
It’s crucial to remember that the disciplinary procedure must be handled fairly and consistently and that the employer might need to speak with a lawyer to make sure employment legislation is being followed. Alternatives include informal dispute resolution, yet in some circumstances, formal disciplinary action may still be necessary. The code of managing workplace investigations and disciplinary procedures for firing employees will be covered in this blog.
One of the first considerations made when a company or organisation undertakes an investigation is whether any of the impacted parties should be suspended.
Previously, it was thought that taking this move would not present a significant legal risk if the contract’s terms were followed and the employee was still getting pay and benefits. Even better would be if the contract had a provision for suspension.
However, a few incidents in recent years have raised the possibility that things might not be as cut-and-dry as they seem. If it is determined that an employer arbitrarily suspended an employee, that employer may be found to have violated the implied contract of mutual trust and confidence, and the employee may be allowed to claim constructive dismissal.
Current ACAS advice
Acas made many substantial updates to their suspensions advice on September 8, 2022. It would be applicable to most businesses, but it is largely directed at “company owners” and includes some employee advise as well.
The amended guidance is significant because it outlines the principles by which any decision to suspend should be made as well as the preliminary actions that must be completed. In the event that the suspension needs to be reviewed by a court or tribunal, the ability of the employer to show that they had considered the suspension and made an effort to abide by its terms is likely to be favourable.
The following five significant steps in the decision-making process are examined in the advice:
- deciding whether to suspend someone;
- investigating the situation;
- evaluating the necessity of suspension;
- evaluating the options; and reaching a decision.
What stands out is how strongly the counsel exhorts the employer to regard the decision to suspend seriously and how heavily it emphasises the potential negative impacts of suspension on people’s mental health and wellbeing. There are repeated references to employers having to “seriously” evaluate each instance before proposing suspension, which they should do “only in some cases.”
Employers are warned not to “use suspension automatically” and that it is frequently better to avoid suspension at all costs. The guidelines underline the detrimental impact that a suspension may have on an employee, cautioning that it can be “stressful,” and advising the employer to “consider the wellbeing and mental health of anyone they’re thinking of suspending.” They should only suspend if “no other choice” is available, according to the clause. In the end, if the company chooses to suspend, they should “prepare what help they’ll provide” for the impacted employee.
Employees are entitled to “something greater” than that, according to Lady Hale in Gogay v. Hertfordshire CC, therefore it appears that the guidance is meant to tip the scales away from a “knee jerk” suspension decision (2000). It was formerly possible to consider suspension to be, at least on the surface, a “neutral act.” However, it has long been understood that this is simply not the case. The fact is that a suspension can have a major influence on a person’s job and perhaps even their future career.
Companies will never be advised to make a hasty suspension decision. Recent instances have amply shown how difficult the decision can occasionally be if it is contested.
A practical perspective on workplace investigation
This revised guidance from Acas undoubtedly indicates a significant shift in how suspension cases will be handled going ahead. It most certainly does not suggest that employers won’t be allowed to suspend employees while looking into a matter. When attempting to protect witnesses or preserve evidence, that is frequently the wisest course of action. It does, however, indicate that the suspension process should be meticulous and carefully considered.
Therefore, it is advisable for employers to put their actions in writing (if they are not already doing so) in order to decide whether to suspend an employee. This documentation should include the factors they considered, possibly with an explicit reference to the guidelines. This would operate as a helpful record to show that the guidance was considered and the decision was not made carelessly in the event that the decision to suspend was ever contested.
Companies could also mention the steps they have taken to safeguard the mental health of the suspended employee. This would further establish compliance with the directive and support the employer’s claim that it continues to adhere to it.