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Disciplinary Case Management- It's all in the investigation

Employment Law & HR
BG Purple

Note: this article was first written by our colleagues at Solve HR, before Solve HR joined Law At Work in March 2020. We have imported this...

Working with a client recently on a particular tricky disciplinary issue, it became quite clear what the client aims were. In short they were fed up of the employee in question continually taking the proverbial and getting away with it. As Solve. offers pragmatic and commercial solutions we are not unfamiliar with the demands and frustrations business owners often share with us. In this particular case, we had to rely on the argument of 'reasonable responses'. 'Reasonable responses' is an argument that employers can rely on in an employment tribunal when they have dismissed an employee for dishonesty. This means that an employer does not have to 'prove beyond reasonable doubt' that an employee committed wilful misconduct, rather that they concluded after investigation that it is more than likely to have happened. The leading case on this remains BHS vs Burchell where the tribunal judge agreed the dismissal was fair on the basis that there were reasonable grounds for the belief of dishonesty on the part of the employee in question AND importantly the Company carried out as much investigation as was reasonable. The test simplified is: did the employer's decision fall into the band of reasonable decisions that could have been made? Therefore with this test in mind the 'investigation' becomes critical if you are going to rely on this argument for dismissing an employee after a disciplinary hearing. Through your disciplinary investigation you must be thorough in acquiring evidence, questioning the employee and witnesses and keeping focused on the crux of the issue. Clever employees often try to deflect the attention from themselves in these investigations and go off point, blame others or use excuses such as time pressure, however, if you stick to the point and ask questions which focus on the issue in hand you should be deemed to have carried out a reasonable investigation. In some circumstances a lengthy investigation will save time later as the disciplining manager will have all their questions answered for them and will only require to make a judgment on all the evidence presented to them. If this is the case and there has been clear misconduct on the employee's part as referenced in your disciplinary policy of misconduct offences and you also follow your own policy and procedure you can ensure that an unfair dismissal claim will be hard to uphold. For support in conducting a thorough, defendable disciplinary investigation email us today for our investigation tips.

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