Suspend with care. Consider suspending an employee only in cases of suspected gross misconduct. Suspension must never be a ‘knee jerk’ reaction. Proceed with caution; the latest case law reminds employers that they must not automatically suspend an employee who is suspected of committing misconduct or gross misconduct.
An unjustified suspension may well be a breach of the implied duty of trust and confidence towards the employee and could result in an unfair dismissal. The act of suspension can leave the suspended employee feeling aggrieved, demoralised and excluded, especially if he or she has been instructed not to communicate with work colleagues.
We can help you decide if the facts and circumstances justify suspension, and if so how you should suspend the employee.
The quality and scope of the disciplinary investigation is a key step in showing that a dismissal was fair, especially in gross misconduct cases. The disciplinary investigation must be transparent, fair and reasonable. It must be conducted without undue delay and it must be even handed in scope with evidence for or against the employee being pursued. Simon Quantrill and Katherine Sheerin are often asked by employer clients to give advice and guidance on the following disciplinary investigation issues:
Who should conduct the disciplinary investigation?
We can help you identify the right person to act as the Investigating Manager and ensure they are correctly briefed.
Planning the investigation
Especially when the allegations are complex or particularly serious, we can help plan the nature and scope of the investigation.
Preserving and obtaining the evidence is a vital step for the Investigating Manager to get right. Our advice can be invaluable in making sure no key evidence is overlooked.
Making sure the right questions are asked of each witness is a key example of how we help the investigator ensure that his or her investigation is fair and balanced.
The Investigation Report
Investigators, especially if inexperienced or in complex cases, often ask us to help assess the evidence and to decide if the accused employee has a case to answer. If so, we can help ensure the Investigation Report is correctly written and contains the relevant evidence and recommendations.
Drafting the disciplinary allegations
If the employee has a disciplinary case to answer, how you word and describe the disciplinary allegations is a fundamental step in avoiding an unfair dismissal claim.
The arrangements and conduct of the disciplinary hearing are key parts of a fair disciplinary procedure. Simon Quantrill and Katherine Sheerin regularly help employer clients navigate the requirements of a particular case. Their help can include drafting the invitation letter to the accused employee, recommending the contents of the hearing bundle, or giving guidance to the chair of the disciplinary panel about how to conduct the actual hearing and arrive at the right decision. They can advise on how best to respond to specific issues or problems, such as a compliant of bias.
We can advise on the disciplinary hearing evidence and what issues the panel should take into account when reaching a decision about the employee’s conduct. We can help with the drafting of any written warnings or dismissal letters.
When an employee appeals against a disciplinary hearing outcome we can advise on the merits and guide you on how the appeal should be handled.
At any time during the disciplinary process, we can recommend how and when an offer of settlement could be made and on what terms. Our advice will always minimise the risks of any offer being misinterpreted or causing the employee to cry foul.
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