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Investigations and Disciplinaries – What can be included?

DM
BY Donald MacKinnon
Employment Law & HR
BG Purple

A recent case has highlighted the difficulty in deciding what to include in an investigation report, particularly if the offence in question has occurred before and no action was taken. NHS 24 v Pillar assessed this very point, where Pillar, a nurse practitioner who was employed to triage patient calls, failed to spot a potential heart attack and referred a patient to the incorrect service. She was dismissed after an investigation and disciplinary hearing.

The Employment Tribunal found that the reference to 2 previous incidents of this nature which were not acted upon at the time they happened in the investigation report was unreasonable and held that the dismissal was unfair.  On appeal, the EAT overturned this decision stating that the offence on its own merits warranted dismissal and that this was not a totting up case but one of clinical competence, therefore referring to the other two offences in the report was not unreasonable.  However, Lady Wise, the judge, did not rule out that overzealous or otherwise unfair investigation could result in unfair dismissal.

The principles of fairness in a disciplinary process are set out in the ACAS Code of Practice on Disciplinary and Grievance Procedures, also known as the ACAS Code. Failure to investigate potential misconduct will almost certainly fall foul of the ACAS code’s fairness principles. It is vitally important to investigate even if you believe the guilt of the employee is obvious. In addition, even if the employee admits to the misconduct, it is recommended that you investigate fully to identify if there are any mitigating circumstances that might have a bearing on the ultimate sanction.

The amount of investigation required will depend on the case but the legal test is “reasonable in all the circumstances”. Although there is no hard and fast rule about what this means you should ensure that the investigation is sufficient enough that the substance of the allegation is clear so the employee can put across a meaningful response. In other words, the more serious the allegation, the greater the investigation required.

The ACAS Code states that different people should lead each stage of the process; investigation, hearing and appeal with an increasing level of seniority at each stage. However, sometimes smaller businesses do not have enough managers in senior positions to achieve this and the same people may be involved in multiple stages. In this instance, as long as you can argue that you behaved reasonably you should not have any problems. If the employee admits guilt in an investigation meeting this does not mean that you can avoid a disciplinary hearing as they are separate stages in the process. A disciplinary hearing should still be arranged giving 24 hours written notice and the right to be accompanied. As a further cautionary note, be aware that you may have a contractual disciplinary procedure that obliges you to go over and above the ACAS code and you would have to honour this or otherwise risk a breach of contract claim.

Relating this back to the case referred to above, it is clear that investigations can be confusing as you can find incidents and facts that you did not intend or may impact on how you proceed with the disciplinary process. To ensure that you are following the ACAS code and going through the correct procedure, please phone Empire at the earliest opportunity and seek advice.

 

For advice and information about disciplinary and grievance procedures contact the Empire Advisory Service on 01224 701383

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