Conducting a proper internal investigation is the key to a fair disciplinary process.
Internal disciplinary policy
Employers should therefore be mindful of their own internal policy, take time to follow the steps that it sets out, and ensure that the employee investigated is given a fair chance to present their case, which includes having all the necessary information and a clear understanding of the allegations against them.
There is a legal requirement to display in a prominent place at the employer’s premises a copy of the internal policies and regulations for the establishment.
Legitimate claim by an employee
Procedural errors during an internal process can give rise to a legitimate claim by an employee with the consequences of a large pay out, reputational damage, wasted time and unnecessary spent legal costs.
Formal disciplinary action
No formal disciplinary action should be taken until the matter has been investigated by the employer. The investigation should be conducted within 7 days from the date the offence is discovered.
The employee may not be accused of an offence discovered more than 30 days ago, where such offence is not a criminal act.
The employee should be notified of the offence(s) in writing and should have an opportunity to defend their case. It is advisable to keep an accurate note of investigation minutes.
The employee is entitled to be accompanied by a fellow employee of their choice at the meetings that may result in a disciplinary penalty.
If the offence is established, the employer will have 15 days to impose a disciplinary penalty.
Any disciplinary action taken against the employee should be notified to them in writing. The letter should explain the disciplinary penalty imposed and the consequences of it, as well as the consequences of repeating the offence. The employee should be required to sign a copy of the notice acknowledging receipt.
The employee should have the right to appeal against any formal disciplinary penalty within 7 days of being informed of the disciplinary penalty.
Where a disciplinary hearing is held, the employer should set out in writing the alleged conduct or performance which has led to the disciplinary action against the employee.
At the employee’s request, they should be sent all relevant evidence, including witness statements, documents and other materials (subject to the employer’s discretion to take steps to protect the identity of any witness where it deems it necessary or to comply with its obligations concerning the personal data of other employees or third parties) which has been gathered during the investigation and which forms the basis for the employer’s complaint, as far as reasonably practicable in advance of the hearing (usually 2 days).
The employer shall always reserve the right to send or include additional information concerning its complaints to the employee following that first letter, provided that in doing so it gives the employee a reasonable opportunity to consider that information. What is reasonable will depend on the circumstances.
The employee must also send to the employer (or to the person designated by the line manager) any evidence that they wish to be considered at least 2 days before the hearing.
Witnesses will only be present at the hearing where the line manager conducting the hearing believes it is appropriate.
At the hearing, the employee will be allowed to state their case and defence, respond to the evidence and put forward any factors that they believe should influence the decision about what, if any, penalty to impose.
Following the hearing or the resumption of any adjourned hearing, the employer should inform the employee of its decision in writing.
The burden of proof
The burden of proof is on the employer to establish that dismissal was justified.
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