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Managing Misconduct

With the longest day just past and Wimbledon well under way, it might seem a bit late to be making New Year’s Resolutions, but it’s never too late to focus on managing people correctly.

When dealing with misconduct, it is important to act in a timely manner. The first thing you need to do is carry out a thorough investigation. The purpose of the investigation is to gather evidence to establish exactly what happened. The investigation should be documented and will involve asking questions and taking witness statements from all involved.

You need to establish the facts of the situation to determine if the individual in question has a case to answer at a disciplinary hearing. A common mistake when carrying out investigations is failure to carry out the investigation as soon as possible after the event.

In some situations it will not be possible to investigate immediately after the event, for example, if you do not become aware of the situation until a week after the event. However, it is important to investigate as soon as the situation comes to your attention and when the details of what happened can be better remembered by those involved.

Putting off the investigation to a later date can result in an unfair investigation and can prevent you from obtaining all the facts. It is essential that when you are gathering evidence that you do not get confused between what actually happened and how this was interpreted by key witnesses. When giving evidence, people often tell you their judgement of the situation rather than what they saw or heard. If a witness says that they saw someone being aggressive then they must be able to explain what this person did which was interpreted in this way.

If the investigation does not reveal this level of detail then you need to go back and do a more thorough investigation asking more probing questions. If further investigation still does not bring to light enough evidence then this might be because the allegations are less serious than they first seemed. In this instance, informal action may be the appropriate way forward. If after considering the evidence you progress to a formal disciplinary stage, remember that unless you follow the correct procedure then you will not be able to uphold any disciplinary sanctions if the individual appeals.

The person who chairs the disciplinary meeting should be a different person to the investigating officer. When you invite someone to a disciplinary meeting you should clearly set out the allegations so that he or she has the opportunity to prepare their response. You must remind them of their right to be accompanied by a trade union representative or work colleague.

At the disciplinary meeting you must allow the individual to present their version of events. Even if you feel this has already been covered during the investigation stage you should still ask the individual what happened from their perspective. Sometimes people change their story. You must demonstrate that the hearing is fair and that no decision will be made until after the individual has had the opportunity to present his or her case and the disciplinary officer has had enough time to reflect on the discussions.

Following the meeting the individual should be notified in writing of the outcome of the disciplinary which might result in a disciplinary sanction or might not. In this letter you should advise the individual of his or her right of appeal. Take a leaf from Venus Williams, Rafael Nadal, Andy Murray et al and just keep practising.

You may not win Wimbledon, but you may well achieve the prize of better productivity, fewer staff problems and – best of all – no employment tribunals. For further guidance about workplace investigations get in touch.

Russell HR Consulting provides expert knowledge in HR solutions, employment law training and HR tools and resources to businesses across the UK.

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