From time to time we will be challenged as to whether an employee who is to be disciplined has to have a seperate investigatory hearing in order for any disciplinary sanction to be fair.
There are very valid reasons why we might conduct a seperate investigatory meeting:
- When we need to establish more facts before we determine whether a disciplinary matter has occured.
- When we need to interview the employee as a witness, particularly where we suspect other people may be involved.
In answer as to whether we have to have had a seperate investigatory meeting, the answer is always no, unless you have a specific comment in your contractual disciplinary procedure.
The ACAS Code of Practice on Discipline and Grievances at paragraph 5, 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.”
There is no legal requirement that an employer hold an investigation meeting before holding a disciplinary meeting in order for a dismissal to be fair. Section 98(4) of the Employment Rights Act 1996 simply requires an employer to act ‘reasonably’.
In the modern workplace,unless it is a public sector employer it is unusual for the employer to have a contractual procedure requiring two meetings.
However always check.
In our HR practice we come across all sorts of disciplinary procedures that have been implemented into businesses from other sectors. No one has read the policy or procedure in enough detail to know what they have included and the consequences of this.
Remember when we conduct a disciplinary hearing we do so in good faith, we act ‘reasonably’ and we share the evidence with the employee and their companion. There’s always an appeal to give the employee a second chance to explain their case if they feel we have made a mistake.
If you need any assistance with a disciplinary investigation, please give us a call on 01527 909436.