DISCIPLINE INVESTIGATION - CLAIM OF BREACH OF HUMAN RIGHTS

Jane Byford - Martineau Solicitors
Online advisor - 9 posts

Dear Steve

Thanks for your recent query.

If you dismiss this employee for misconduct, namely lying to hide his negligence and he brings a claim against you for unfair dismissal, an Employment Tribunal will consider the following factors:

1. Had the employer got reasonable grounds on which to sustain its belief?

2. Had the employer carried out as much investigation as was reasonable?

3. Was the dismissal a fair sanction to impose?

The investigative process is important for a number of reasons: it enables the employer to discover the relevant facts to enable it to reach a decision as to whether the misconduct occurred; if properly conducted it secures fairness in providing the employee with the opportunity to respond to the allegations made; and even if misconduct is established, it provides an opportunity for any mitigating factors to be put forward which could affect the appropriate sanction.

Your invitation to the disciplinary hearing would appear to suggest that you have made a prejudgement of the outcome and that the hearing itself will be no more than a step along the procedure which must be undertaken in order to dismiss this employee and not a proper investigation into the allegations. The right to be heard and to have a fair hearing is one of the basic principles of natural justice and is enshrined in the Human Rights Act 1998 and the employee must be given an opportunity to state his case before a decision is reached. Without an appropriate investigation, the employee will have a good chance of successfully bringing a claim for unfair dismissal in an Employment Tribunal.

Most importantly at this stage, you must ensure that the disciplinary hearing is held before the final decision is made, it is procedurally fair and follows the rules of natural justice. Section 1 paragraph 9 of the ACAS Code of Practice on Disciplinary and Grievance Procedures provides useful guidance on conducting a disciplinary hearing and is available from their website www.acas.org.uk. You may also need to consider asking a colleague who has not been involved in the investigation to date but will be a party to the decision as to whether or not to dismiss the employee, to take over your role in the procedure. This should help to ensure that there can be no further allegations of prejudgement or bias. It is also advisable to reissue an invitation which explains that the employee is requested to attend in order to aid the investigation into claims that he had lied to cover his negligent behaviour and explains that your colleague will now be conducting the hearing.

Yours sincerely

Jane Byford

Partner

Martineau Johnson

Anonymous

Have you any advice, once the investigation has been carried out, on how to word an invitation to a disciplinary hearing where we must tell him what he is accused of yet not pre-judge the outcome?

Do using the words "alleged" and "suspected" suffice to show it is not pre-judged?

Thanks in advance.

K32