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Sticking to The Letter

Last week two of our clients carried out disciplinary investigations and invited their respective employees to discipline meetings in consequence. The meetings went ahead and then I discovered that they had either only gone off-piste in one case had starting talking about something else altogether. In the other, the organisation had only put half the allegation in the letter requiring the employee to attend the discipline hearing and had actually failed to set out the main (and most serious) charge.

A discipline officer can only consider evidence related to the matter identified or allegation set out in the letter requiring the employee to come to the meeting. You can’t deal with anything else. To do so breached the rules of natural justice. If the charge is not set out, the employee does not know what he or she is charged with and can’t prepare.

So what happens if the investigation is into theft and bringing the company into disrepute and the letter requiring the employee to come to the discipline hearing only refers to bringing the company into disrepute? It means that the discipline officer can only consider matters relating to bringing the company into disrepute. This applies, even if the employee knows that the investigation was into the theft and the allegation was simply omitted from the letter.

In any letter requiring an employee to attend a discipline you must set out the alleged misconduct clearly and should, throughout the disciplinary process, be consistent in your allegations. Any disciplinary sanction can only be imposed only in respect of allegations that were properly investigated and brought to the employee’s attention. If something new emerges then by all means investigate it, but if you know about some transgression at the time and you want it dealt with, it has to be specified.

There are no ‘rules’ as to the level of investigation you should conduct into the employee’s suspected misconduct. It will depend on the circumstances. Consider the following points when carrying out the investigation:

  • Identify the allegation to be investigated.
  • The investigating officer must have no previous involvement in, or knowledge of, the immediate matter and should keep an open mind; and conduct the investigation as quickly as possible.
  • The employee under investigation and relevant witnesses must be interviewed (not all witnesses need to be interviewed if a fact has been clearly established).
  • Take notes/records of the investigation meetings.
  • An investigation report should be drawn up which sets out a summary of the evidence, including any inconsistencies. This report should not draw any conclusions as to guilt. That’s the responsibility of the disciplining officer. All the investigator should do is determine whether there is a case to answer or not.

The moral of the story is, ensure that you set out all charges clearly in the letter requiring the employee to attend a discipline hearing and send all the evidence upon which you’ll be relying so the employee has the opportunity to understand and prepare.

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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