Often we are asked by our employer clients whether they always have to conduct a separate investigation hearing, before holding a disciplinary hearing with an employee.
Strictly speaking, the answer is no.
The Employment Rights Act 1996 is the law that governs unfair dismissals and it states that in order for a dismissal to be fair, the employer must act ‘reasonably’. What is classed as ‘reasonable’ >will be dependent on the specific facts of the matter.
This is supplemented by the ACAS Code which states “It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. In some cases this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing."
This makes it clear that some disciplinary cases will require an investigation hearing, whereas others will not. Often, factors such as the severity of the alleged misconduct, the number and/or complexity of the allegations and the strength of other evidence available will be used to determine whether an employer has acted reasonably by skipping an investigation hearing and proceeding straight to a disciplinary hearing.
However, a quick word of warning: If there is a collective agreement in place that requires you to hold a separate investigation hearing, or should your disciplinary policy require you to undertake an investigation hearing, then there is a higher chance that a subsequent dismissal is unfair should you fail to comply. So please check your policies and other related documentation to ensure you do not fall foul, before deciding whether to dispense with an investigation hearing.
If ever in doubt, our best advice is that you hold an investigation hearing…
To quote Mark Twain - “Supposing is good, but finding out is better”! Plus you are highly unlikely to be criticised by a tribunal (or an employee) for investigating an allegation. It will also help you retain control of any disciplinary process that follows, as well as eliminate a potential argument from the employee that the process is unfair because he or she should have had the benefit of an investigation. It follows that there is nothing for you to lose, but potentially much for you to gain.
If you have any questions about this bulletin, or should you require any advice regarding the topic of disciplinary processes, please do not hesitate to get in touch with a member of our Employment Law Team.