Employee Disciplinary Allegations and Proceedings

Gross misconduct is the term used to describe the most serious misbehaviour at work by an employee. Examples include, theft, fighting, gross insubordination, serious misuse of social media or gross negligence. Gross misconduct is where the employee’s conduct is so serious it goes to the root of the contract and entitles the employer to dismiss summarily i.e. with no notice or pay in lieu of notice. The employee’s conduct must be deliberate and wilful.

A grievance is a dispute or concern about a work place issue that is raised by an employee. A disciplinary complaint is made by the employer and it relates to an employee’s conduct at work, for example: being late for work or not working to the required standards. A grievance procedure will be different to a disciplinary procedure; both should be set out in the employer’s employee handbook or HR intranet.

It can be. A disciplinary procedure can cover both misconduct offences and work performance or capability issues, including ill health absences. However, increasingly HR best practice is for employers to have separate procedures to deal with disciplinary allegations and capability concerns. In practice, if your employer judges your work underperformance is a result of your poor attitude or approach to work it will most likely treat it as a disciplinary matter. If your underperformance is caused by factors outside of your control then your employer will follow its capability procedure.

Yes, provided there is a contractual right to suspend you included in your contract of employment and the matter under investigation is a serious one. If not, your employer may not be able to suspend you from work unless you agree. In any event in all cases your suspension must justified and be on full basic pay. Your holiday entitlement will continue to accrue. The length of time on suspension should be reasonable and no longer than is absolutely necessary. We regularly help clients dispute unjustified or protracted periods of suspension. Both can be prejudicial and harm an employee’s ability to return to work.

You have the right to request to be accompanied by a fellow work colleague or an appropriate trade union official. Your employer should remind you of this right and must not unreasonably refuse your request. In fact, employers have almost no scope now to object to an employee’s choice of companion. Sometimes your employer will be justified in asking you to be accompanied by a different person if your first choice creates a conflict of interest.

Unless your employer’s policy and procedures allow, or your employer agrees, you won’t have the right to be accompanied by a friend, family member or solicitor. Many employers, however, tend to adopt a flexible approach and will allow an employee to be accompanied by a friend or other person if there is not a suitable work colleague or trade union person.

For a disabled employee, sometimes it can be a reasonable adjustment for the employer to allow the employee to be accompanied by a friend or other person, for example his or her spouse or partner.

In almost all cases employers will not allow you to be accompanied by your solicitor.

Yes, before deciding to hold a disciplinary hearing your employer must carry out an investigation into what has happened and share with you its findings and evidence relied upon. The scope of the investigation will vary according to the facts of each case. For example, where the employee has admitted a theft the employer may not be expected to have to do much further investigating. Where there is only a suspicion about an employee’s conduct or where the facts are in dispute then the employer has to conduct a much more detailed and through investigation. The scope and quality of an employer’s disciplinary investigation is an area where the solicitors at Quantrills regularly help employee clients challenge the employer’s approach.

Yes, to enable you to properly prepare for the disciplinary hearing you are entitled to know the allegations being made against you in sufficient detail so that you are not left in any doubt about the case you have to answer.

For example, if you are being accused of making sexist remarks to a work colleague, you should expect to be told the dates of each remark and the gist of what you are alleged to have said and to whom.

Employers have a wide discretion about how to conduct a disciplinary hearing. However, your employer has to follow a fair procedure that incorporates the Acas Code of Practice. Most employers will have a disciplinary policy and procedure that they will follow.

For more details about what should happen at a disciplinary hearing click here for our Briefing Note.

Yes, but you must observe any time limits for appealing set out in your employer’s disciplinary policy and procedure. If you dispute the fairness of your dismissal in almost all cases you should appeal. If you don’t it is possible that the value of any compensation awarded by the employment tribunal could be reduced by up to 25 per cent.

Possibly; it depends on why you want more time and if your case is potentially complicated or may result in you losing your job. If you want more time you should make a written request as soon as possible giving your reasons.

Examples of when your employer should give you more time include when you are provided by your employer with lots of documentary evidence late and you need more time to read and comment on it, or you need more time to speak to witnesses or take legal advice. Falling ill during the disciplinary proceedings may also be a valid reason for more time.

Possibly not. Your employer must show it has acted fairly in deciding to dismiss you. If you can show that your employer treated you differently compared with another work colleague for the same offence then this inconsistency may help you establish your dismissal was unfair (provided you have at least two years’ continuous service).

A full answer to this question is included in our Briefing Note When will your dismissal be unfair?

Yes absolutely. Our employee clients live and work across the country and abroad. We are set up to make using our services easy. Please contact us to discuss your case and how we can help you wherever you live or work.