Conducting a disciplinary investigation and
hearing
Abstract
A note dealing with the conduct of an investigation and subsequent disciplinary proceedings into
allegations of misconduct by an employee, taking account of the law of unfair dismissal, the
statutory dismissal and disciplinary procedures and the ACAS Code of Practice.
Susan Thompson, Magrath & Co
Fulltext
Contents
Key legal principles
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Statutory dismissal and disciplinary procedures (DDPs)
ACAS Code
Fair dismissal
The investigation
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How much investigation is required?
Confidentiality
Who should conduct the investigation?
Suspension
Obtaining the evidence
Reluctant witnesses
The rights of the employee being investigated
Disclosing the evidence
The disciplinary hearing
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Personnel
Procedure
Witnesses at the hearing
Postponement or failure to attend
Ill health and stress
Right to be accompanied
Matters involving the police
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Level of employer's investigation
Guilty or not guilty?
The decision
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Appeals
Communicating the decision
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Conduct of appeal
Record-keeping
ACAS core principles of reasonable behaviour
Further information
It is rare that a manager with responsibility for staff does not at some stage have to deal with an
employee's misconduct or poor performance. As it can often lead to an employee's
(www.practicallaw.com/1-200-3195) dismissal, commencement of disciplinary procedures can
cause significant distress for an employee and alarm the manager sufficiently that often the
procedure is bypassed altogether. The consequences of dismissing without following any
disciplinary procedure, however, is that any dismissal (www.practicallaw.com/3-200-3180) will
almost inevitably be considered unfair by an employment tribunal (www.practicallaw.com/9200-2984) with financial penalties for the employer (www.practicallaw.com/5-200-3198) .
Further, as detailed below, there is now a legal requirement to follow certain minimum procedural
steps by reason of the statutory dismissal and disciplinary procedures (DDPs)
(www.practicallaw.com/1-200-3176) which came into force on 1 October 2004 and affect the
way all employers handle dismissals and certain disciplinary issues. Failure to comply with these
procedures in dismissals will lead an employment tribunal to make an automatic finding of unfair
dismissal (www.practicallaw.com/0-200-3624) , award a minimum basic award
(www.practicallaw.com/9-200-3035) of 4 weeks' pay, and give an uplift on any award of
compensation of between 10 and 50%. For further information see Practice note, Statutory
dismissal and disciplinary procedures (www.practicallaw.com/4-200-4221) .
Disciplinary procedures, however, should not simply be considered as a means of dismissing or
imposing sanctions on employees fairly or to ensure compliance with legislation. As many
employers have discovered, sensible and fair disciplinary rules and procedures can be a very
useful management tool and can promote the improvement of workplace standards and conduct
in a consistent manner. Procedures should therefore be viewed as an effective means of
resolving workplace disputes and improving poor performance, not just for imposing punishment.
Key legal principles
Prior to commencing any disciplinary investigation and/or hearing an employer needs to be
familiar with three key areas of employment law:
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The statutory dismissal and disciplinary procedures (DDPs).
The principles of the ACAS Code of Practice on Disciplinary and Grievance
Procedures (www.practicallaw.com/9-200-4742) (the ACAS Code).
The need for an employer to identify a fair reason for dismissal and to act reasonably in
accordance with section 98 ERA 1996 (www.practicallaw.com/4-200-3207) when
conducting a disciplinary investigation or hearing.
Statutory dismissal and disciplinary procedures (DDPs)
Research undertaken by the Government in the late 1990s demonstrated that, in over a third of
all employment tribunal claims, the employer and employee had not discussed the issues in
dispute before the tribunal hearing. In addition, the Government was under increasing pressure
from various employer bodies that employment tribunals should be a place of last resort for
employers and employees to resolve their disputes. The Government therefore introduced new
procedures under the Employment Act 2002 (EA 2002) to deal with dismissal and disciplinary
hearings. These statutory procedures came into force on 1 October 2004 under the Employment
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2
Act 2002 (Dispute Resolution) Regulations 2004 (the Dispute Resolution Regulations). For full
details, see Practice note, Statutory dismissal and disciplinary procedures
(www.practicallaw.com/4-200-4221) .
Two statutory procedures were introduced for use in situations where the employer is
contemplating dismissing or taking "relevant disciplinary action" against an employee:
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A standard three-step procedure for use in the majority of employee dismissals and
relevant disciplinary action short of dismissal (that is, action short of dismissal based
wholly or mainly on the employee's conduct or capability other than suspension on full
pay or the issue of warnings). This could cover, therefore, demotions or pay reductions
and other disciplinary sanctions.
A modified two-step procedure for use in a small minority of gross misconduct
(www.practicallaw.com/7-200-3338) dismissals.
Any breach of the statutory procedures, no matter how minor, will result in an automatic finding of
unfair dismissal (section 98A(1), ERA 1996). However, because of the overriding need for an
employer to act reasonably (see Fair dismissal) following the procedure is not of itself a
guarantee that the dismissal will be fair. Furthermore, no exemption has been permitted for small
employers who obviously will have fewer resources available to them than large companies with
dedicated HR departments. This is in contrast to the general law of unfair dismissal, which allows
tribunals to have regard to the resources available to an employer when determining if a
dismissal is fair or unfair (section 98(4)(a), ERA 1996).
The new regime also only applies to employees and not other workers
(www.practicallaw.com/6-200-3640) . However, the statutory right to be accompanied at a
disciplinary hearing extends to all workers (see Right to be accompanied, below), and employers
are advised to apply the DDPs to both workers and employees so as to ensure consistency and
to minimise the risk of any breaches.
The two statutory procedures are summarised below:
Standard Procedure
Step 1
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The employer must set out in writing the nature of the employee's conduct, capability or
other circumstances that may result in dismissal or disciplinary action and must send a
copy of this statement to the employee.
Step 2
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The employer must invite the employee to a meeting which must take place at a
reasonable time and place and the employee must take all reasonable steps to attend.
After the meeting the employer must inform the employee of its decision and offer the
employee the right of appeal.
Step 3
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If the employee wishes to appeal he must inform the employer. The employer must then
invite the employee to attend an appeal meeting and thereafter the final decision must be
communicated in writing to the employee.
Conducting a disciplinary investigation and hearing – RFU Guidance
3
(Schedule 2, Employment Act 2002.)
Modified Procedure
The modified procedure is meant only to apply in very serious cases of gross misconduct where it
is reasonable for the employer to dismiss without investigating the circumstances. Given that
case law on unfair dismissal has confirmed that the only situation in which it may be appropriate
for an employer to dismiss without investigating the allegation is where the employee has
admitted their guilt, clearly the remit of the modified procedure will be significantly limited and,
indeed, there is some question as to whether in practice it will ever apply. Employers would be
well advised therefore always to follow the three-step standard DDP in all gross misconduct
cases. For further information see Practice note, Statutory dismissal and disciplinary procedures:
Conduct (www.practicallaw.com/4-200-4221)
The modified procedure is a two-step procedure as follows:
Step 1
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The employer must set out in writing the nature of the alleged misconduct that led to
dismissal, the basis for thinking that the employee was guilty of such misconduct, and the
employee's right to appeal against the decision.
The employer must send a copy of this statement to the employee.
Step 2
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Should the employee wish to appeal they must then inform the employer and on receipt
of an appeal request, the employer must then invite the employee to attend an appeal
meeting. Thereafter the final decision must be communicated to the employee.
(Schedule 2, Employment Act 2002.)
There are a number of general requirements as to how any hearing under the DDPs should be
conducted (see The disciplinary hearing.
ACAS Code
The ACAS Code (www.practicallaw.com/9-200-4742) is intended to provide practical guidance to
employers and employees. Failure to follow any part of the ACAS Code does not of itself make a
person or organisation liable to proceedings. However, employment tribunals will take the ACAS
Code into account when considering whether an employer has acted reasonably or not.
For dismissals occurring since the DDPs were introduced on 1 October 2004, the view a tribunal
must take of procedural failings by the employer (including breaches of the ACAS Code or of the
employer's own internal procedure) is different to the view it would have taken in the past. The
new rule is that a tribunal will not find a dismissal unfair on procedure alone, if the employer can
show that the procedural failing made no difference to the decision to dismiss. This rule is subject
to the overriding principle that the employer must have complied with the requirements of any
relevant DDP as a minimum; otherwise the dismissal is automatically unfair (section 98A, ERA
1996).
The ACAS Code, together with the ACAS Advisory Handbook: Discipline and Grievances at
Work, sets out key principles of reasonable behaviour for an employer to consider when starting
Conducting a disciplinary investigation and hearing – RFU Guidance
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an investigation or contemplating taking disciplinary action (See box, ACAS core principles of
reasonable behaviour).
See Further information for links to the full text of these documents.
The ACAS Code is an important document and should always be born in mind by the employer
when drafting or implementing a disciplinary procedure. However, it must be emphasised that
simply following the Code may not be sufficient to persuade an employment tribunal that an
employer has dismissed fairly in the event the disciplinary hearing leads to a dismissal. The law
of unfair dismissal is primarily concerned with whether the individual employer acted reasonably
in all the circumstances, and so there is no one-size-fits-all answer to every case (See Fair
dismissal). More may be required from a procedural viewpoint, for example, on issues involving
informants and whether to allow cross-examination of witnesses at hearings, which are not dealt
with in the ACAS Code (see Witnesses at the hearing). The dismissal must also be substantively
fair, that is, it must not have been outside the "band of reasonable responses" for the employer to
treat the misconduct as grounds for dismissal.
Nonetheless, if the standard DDP and the ACAS Code are followed, it would be a rare occasion
that an employer is unable to persuade an employment tribunal that it has not acted fairly or
reasonably from a procedural point of view.
Fair dismissal
In order for an employment tribunal to determine if a dismissal is fair or not, there are two stages.
First, the employer must establish the principal reason for the dismissal and demonstrate that it
falls within one of the categories of potentially fair reasons in section 98 of the ERA 1996. These
are:
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A reason related to the capability (www.practicallaw.com/1-200-3063) or
qualifications of the employee for performing work of the kind which he was employed
by the employer to do.
A reason related to the conduct of the employee.
Redundancy (www.practicallaw.com/8-107-7122) .
That the employee could not continue to work in the position which he held without
contravention of a legal requirement, duty or restriction (on the part of the employer or
employee).
Some other substantial reason of a kind such as to justify the dismissal of an employee
holding the position which that employee held. Common examples here can include
dismissal due to a restructuring or third party pressure to dismiss.
(Section 98, ERA 1996.)
It is possible for an employer to rely on more than one reason for dismissal. However, both
reasons would need to be pleaded and argued before an employment tribunal in order to
succeed. It would also be difficult for an employer to plead a reason that is different to the reason
given at the time of dismissal.
Secondly, it will be necessary for an employment tribunal to be satisfied that in all the
circumstances the employer acted reasonably in treating the given reason or reasons as
sufficient to justify dismissing the employee. Over time this has been interpreted by the courts as
a requirement that an employer adopt a fair procedure before taking the decision to dismiss. For
example, in a redundancy situation, a fair procedure requires that an employee must be given
sufficient warning of the impending redundancy, consulted about their redundancy and searches
Conducting a disciplinary investigation and hearing – RFU Guidance
5
undertaken by the employer for alternative employment opportunities. With regard to conduct and
capability, a fair procedure translates into the application of a fair, transparent and consistent
application of a disciplinary or capability procedure.
To establish fairness in a conduct dismissal case, an employer must be able to establish that, at
the time of dismissal:
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It believed the employee to be guilty of misconduct;
It had reasonable grounds for believing that the employee was guilty of that misconduct;
and
At the time it held that belief, it had carried out as much investigation as was reasonable.
(British Home Stores Limited v Burchell [1978] IRLR 379.)
In determining fairness, an employment tribunal will not consider whether the employee actually
was guilty of the misconduct, but whether the employer believed, and had reasonable grounds
for believing, that the employee was guilty of the misconduct at the time. To demonstrate that it
had reasonable grounds for the belief, the employer will have to establish that it conducted an
appropriate level of investigation. (Note: the question of guilt will be likely to impact on the amount
of any compensatory award if the dismissal is unfair).
A tribunal should not substitute its own view of what a reasonable investigation should be; it
should ask whether the employer's actions had been within the "band of reasonable responses".
This is the same test that is applied to the question of whether the dismissal was substantively
fair (Sainsbury's Supermarkets Ltd v Hitt [2003] IRLR 23 (CA), Bulletin, PLC Magazine,
December 2002 (www.practicallaw.com/5-101-8290) ). Since that case, it has been clear that
employers have a certain latitude as to what constitutes a reasonable investigation.
The employer should also consider whether or not the dismissal is a fair sanction to impose (see
The decision).
Whilst the Burchell case involved an issue of misconduct, its principles can clearly apply to
situations which involve capability, poor performance or sickness absence. For example, in cases
of poor performance, unless the employer has reviewed documents such as appraisals or other
performance records, and has asked managers to comment, there may be little evidence on
which the employer can rely to demonstrate the reasonableness of its belief that performance has
not been to the level required.
The investigation
The need for an investigation before taking any disciplinary action is critical if an employer is to
ensure it does not fall foul of either the Burchell principles or of the DDPs. Burchell requires a
reasonable belief and a reasonable amount of investigation and the DDPs require that in a
dismissal or disciplinary situation, the allegations that an employee is required to answer are set
out in writing. An employer will be unable to do this unless an appropriate amount of investigation
has been carried out.
It will often be the case that, during the investigation, perfectly plausible explanations emerge and
the disciplinary process is discontinued without a hearing. This is why it is of vital importance that,
even in cases of "obvious guilt" the employer should always investigate rather than launch
straight into a disciplinary hearing or even dismiss an employee.
Example
Conducting a disciplinary investigation and hearing – RFU Guidance
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The employer witnesses an employee taking £10 from the cash register and putting it in his
pocket. The employer may well assume the employee is guilty of theft and dismiss immediately.
However, on investigation, the employee's explanation is as the cash register was short of
change, two £5 notes were placed in it from his own pocket and a £10 note removed. Further
investigation later that day shows that the register is not short of £10 and therefore the
employee's explanation, which has been corroborated by a colleague, is correct. Clearly in such a
situation no disciplinary action for theft would arise. It is possible, however, as is not uncommon
in the retail sector, that such a transaction would be prohibited in the first place and there might
be a need to discipline the employee with a view to giving a warning about this breach of
procedure.
The amount of investigation required will vary enormously depending on the individual
circumstances of the case. What the employer needs to ensure is that the relevant facts have
been established so that the employer's case can be put to the employee in a manner that makes
it clear what is being alleged. Detailed investigations are more likely to be required in
circumstances of misconduct or suspected wrongdoing rather than in capability issues, which
may simply require a review of the employee's appraisals and discussions with the line manager
and the employee.
Informal steps
Consideration should also be given as to whether a formal investigation is even necessary. The
ACAS Code emphasises that informal action may often be a more satisfactory method of
resolving problems than a disciplinary meeting.
Informal discussions with, for example, an employee whose timekeeping may be giving cause for
concern, may be all that is needed to alert the employee to the fact that their lateness has been
noticed and is not acceptable. This can often be a better way of dealing with the problem than
launching straight into an investigation and formal disciplinary action. Obviously, if this approach
is unsuccessful and the lateness continues, a more thorough investigation may be necessary,
and will involve the employer in keeping records of the lateness in order to provide evidence at a
disciplinary hearing. Informal action is often a very useful tool in cases where poor performance is
of concern. The employee and manager may be able to have a constructive conversation about
the areas of concern and additional coaching, training, and advice may be sought and/or
provided. An employer should ensure that the employee is made aware that formal processes
could be commenced if the problem does not resolve itself or the level of performance required is
not maintained.
Obviously, it is for the individual manager to consider how best to deal with an employee
informally, but as a general guideline, managers should consider:
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Holding a confidential, private meeting with the employee to highlight the problem.
Enquiring why the problem has arisen: for example, frequent absence may be due to
personal problems, or a relationship difficulty at work.
Agreeing what action is needed.
Keeping a record of the conversation.
Sending a memo to the employee setting out what has been agreed or decided.
Investigations are not disciplinary hearings
Prior to commencing an investigation, an employer should be aware that there is a distinction
between an investigation and any subsequent disciplinary proceedings. For example, if an
employee admits guilt during an interview this will not remove the need for a disciplinary meeting,
Conducting a disciplinary investigation and hearing – RFU Guidance
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in order that the employee can state his case and possibly explain any mitigating factors (Budgen
and Co v Thomas [1976] IRLR 174).
A right to be accompanied?
Employees have no statutory right to be accompanied at any investigatory meeting, although a
contractual disciplinary procedure may give them such a right. Employers should, however, bear
in mind their obligations to disabled employees under the Disability Discrimination Act 1995
(DDA). The DDA provides that employers must make reasonable adjustments where their
premises or working practices put a disabled person at a substantial disadvantage to others.
Such adjustments could apply to meetings held by way of an investigation or disciplinary hearings
and may relate to the location or other physical factors, or the manner in which the meeting is
conducted. For more details see Practice note, Disability discrimination.
(www.practicallaw.com/1-200-4246)
This could include allowing an employee with a disability to be accompanied even at an
investigatory meeting, if the presence of the companion would help overcome a substantial
disadvantage caused by the disability. Even where the company's disciplinary procedure does not
allow anyone other than employees or trade union (www.practicallaw.com/0-200-3619)
officials to accompany employees, a more flexible approach may be appropriate in certain
situations for disabled employees. Thus for an employee with a learning difficulty or long-term
depression, a reasonable adjustment (www.practicallaw.com/9-200-3436) may be for that
employee to be accompanied by a member of their family or close friend, which would not
normally be permitted by employers in the vast majority of cases.
How much investigation is required?
This is a question that often baffles employers. Some take an almost forensic approach and
interview all of the employee's colleagues who may only have a tenuous link to the matters in
question; and some employers conduct very little investigation and as a result it may be very
unclear exactly what it is that is alleged against the employee.
While it is difficult to give hard and fast guidelines as to how much investigation is required, given
that the legal test is that an employer must hold such investigation as is reasonable in all the
circumstances, an employer will need to investigate sufficiently to ensure that the substance of
the allegations are clear, in order that this can be put to the employee in sufficient detail to enable
a meaningful response.
If an employee has admitted misconduct, case law suggests that it is reasonable for the employer
to take this at face value without further investigation (Royal Society for the Protection of Birds v
Croucher [1984] IRLR 425). However, it is advisable that an investigation, albeit a more limited
one, is still carried out. This is particularly so where there may be some doubt as to the
employee's motives or the truthfulness of the confession, if their confession implicates others, or if
the employee concerned may be particularly vulnerable, for example, by reason of disability or
age.
Confidentiality
Before commencing any investigation the employer should always bear in mind that
confidentiality is vital. This applies both in relation to the person conducting the investigation and
to any person such as a witness who is involved in the investigation. Consideration should be
given as to whether fellow employees interviewed as witnesses need to be told the name of the
employee being investigated. Obviously, this cannot be avoided in small offices and in situations
Conducting a disciplinary investigation and hearing – RFU Guidance
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of individual misconduct but there will be cases in which it is possible to gather information
without revealing names.
In any event, witnesses should be advised not to discuss the investigation with other employees
or third parties.
Who should conduct the investigation?
Once the decision is taken that an investigation is required, the employer needs to consider who
should conduct the investigation. In most cases, the employee's immediate line manager will be
the appropriate person. However, this may not always be the case. Sometimes the employer's
own procedure (which may be contractual) stipulates who is to conduct an investigation. In some
larger public sector employers, for example, it will be a requirement of the disciplinary procedure
that the person conducting the investigation is in fact a manager from outside the employee's own
reporting line so that the investigation can be carried out impartially. An alternative is to appoint a
member of the Human Resources department to conduct the investigation, since they may have
had training as to the best way to go about this. In other cases someone with specialist
knowledge may be needed - for example, a Finance Manager, if the allegations concern financial
mismanagement.
The employer will also need to consider who should conduct the disciplinary hearing, if one
becomes necessary, since this should ideally not be the person who conducts the investigation.
Otherwise, the decision maker may not be seen to be impartial. However, the ACAS Code
acknowledges that it may not be practical in small organisations to designate different roles to
different people. The disciplinary procedure is not a "judicial inquiry" and a breach of the
principles of natural justice does not, of itself, form an independent ground for a finding of unfair
dismissal, although clearly the tribunal will take this into account when considering the fairness of
the procedure (Slater v Leicestershire Health Authority [1989] IRLR 16; Sartor v P and O
European Ferries (Felixstowe) Ltd [1992] IRLR 271).
Likewise, the investigator or decision-maker should ideally not also be a key witness (unless this
is completely unavoidable, for example, in the case of a small employer). An employer needs to
be satisfied, prior to commencing an investigation, who it considers would be likely to be relevant
witnesses, who will conduct the disciplinary hearing and who may conduct any appeal hearing.
It may also be important to take into account whether the individuals conducting the investigation
and the disciplinary hearing have had any equal opportunities training, as this may be appropriate
in cases involving harassment, bullying, or other discriminatory treatment. If they have not had
training then they should be briefed in their key responsibilities by the Human Resources
representative.
Suspension
In instances of serious misconduct, an employer may wish to suspend the employee who is being
investigated. This may be appropriate, for example, where there is a potential threat to the
business or other employees, or it is not possible to properly investigate the allegation if an
employee remains at work (for example because they may destroy evidence or attempt to
influence witnesses).
The period of suspension should be as short as is possible. Particular care should be taken
where the matter concerns possible criminal allegations as the employer will wish to avoid
keeping the employee suspended on full pay for months or even years pending a court hearing.
Suspension should not be seen by the employer at this stage as some form of punishment for the
Conducting a disciplinary investigation and hearing – RFU Guidance
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employee, but as a means of carrying out an investigation unhindered as quickly as possible.
Inevitably, however, an employee will often view the suspension as a punishment and, unless
handled very sensitively, it may send a strong signal out to an employee that the outcome of any
disciplinary hearing is a forgone conclusion.
Suspension is a serious step and thought needs to be given as to whether it can be avoided. It
may, for example, be possible to place the employee in another area of the business whilst the
investigation is carried out. A "knee-jerk" suspension where the employer has failed to consider
whether it can be avoided may be a breach of mutual trust and confidence by the employer (Milne
v The Link Asset and Security Company Limited UKEAT/0867/04, see Legal update, Constructive
dismissal: is suspending an employee a fundamental breach?)and see Practice note, Implied
terms in employment contracts: Discipline, suspension and demotion (www.practicallaw.com/9200-2045) ). The employer must also be satisfied it has reasonable grounds for the suspension in
order to avoid breaching the implied term of mutual trust and confidence. It is perhaps most
important to beware of acting peremptorily without reasonable grounds in cases of serious or
sensitive allegations (such as for example child abuse) involving senior employees as the
potential repercussions of such an employee being suspended without good cause will be more
serious.
An employee may be able to claim damages for personal injury due to clinical depression arising
from suspension in circumstances where the allegations were subsequently found to be
completely unwarranted (Gogay v Hertfordshire County Council [2000] IRLR 703, see Bulletin,
PLC Magazine, November 2000 (www.practicallaw.com/0-101-3105) ).
Employees need to be informed of the fact that they have been placed on suspension as soon as
is possible. Any conversation to this effect should be followed up in writing. The letter should
make it clear that the employee is suspended, how long it is anticipated the employee will be
suspended for and what the employee's rights and obligations during the period of suspension
are: it should be stated that their employment contract continues but they are not to report to work
and must not contact colleagues or clients. The employee should be notified of a point of contact
(such as a Human Resources manager) during their period of suspension. (See Standard
document, Letter suspending employee pending investigation (www.practicallaw.com/1-2002054) .)
Pay and skills during suspension
Unless there is a clear contractual right to do so, an employer will not be entitled to suspend
without pay, therefore, whilst the employee is suspended, they should continue receiving their
pay and normal benefits during the period of suspension. What, however, of the employee who
receives a substantial portion of their salary by way of commission or overtime? Unless the
employee is able to show a contractual right to such commission or overtime pay it is likely any
claim for such loss would be dismissed (McClory v Post Office [1993] IRLR 159).
However, the express terms of the contract will not necessarily be determinative, as a right to
work may be implied into the contract in some cases where the employee is otherwise deprived
of the opportunity of earning remuneration such as a piece-work rate, shift premium or
commission (Devonald v Rosser & Sons [1906] 2 KB 728; Langston v AUEW (No.2) [1974] ICR
510; In re an Arbitration between Rubel Bronze & Metal Co Ltd and Vos [1918] I KB 315). In such
circumstances suspension on full pay may give the employee a right to seek damages or argue
that he has been constructively dismissed. See Practice note, Implied terms in employment
contracts: Duty to provide work (www.practicallaw.com/9-200-2045) . In addition, in some
circumstances (particularly where a job is unusual or unique) a long period of suspension may be
regarded as preventing the exercise and maintenance of skills properly necessary for the
performance of an employee's duties. In William Hill Organisation Limited v Tucker [1998] IRLR
Conducting a disciplinary investigation and hearing – RFU Guidance
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313, the Court of Appeal concluded that an employer could not rely on an implied right to place
an employee on garden leave in the absence of an express contractual power to do so (see
Bulletin, PLC Magazine, May 1998 (www.practicallaw.com/0-100-8043) ). They found that there
was an obligation upon the employer to allow the employee to do work if work existed. This was
based upon a finding that his position was specific and unique and that the skills necessary to
carry out this position needed to be exercised frequently. Similar principles will apply to
suspensions imposed without an express contractual right.
It is therefore safest, from the employer's point of view, if the employment contract explicitly
provides a right to suspend the employee and a method of calculating pay during the suspension.
Obtaining the evidence
Any investigation undertaken by the employer should be conducted as quickly as is reasonably
possible. Witnesses should be spoken to and notes taken of their recollection of events before
memories fade. Consideration also needs to be given as to whether any physical evidence is
required. The type of physical evidence required will obviously depend on the issue to be
determined: for example, if there is a suspicion the employee has been disclosing confidential
information to competitors, the employee's correspondence files and e-mails may need to be
searched. If the employee has a company mobile phone, checks may need to be undertaken as
to what numbers were dialled.
There is a clear balance to be struck between the employer's need to gather information for the
investigation and the employee's right to be treated fairly and reasonably so that there is no
breach of the implied term of mutual trust and confidence. An employer should be careful
therefore not to use the investigation as an excuse to undertake a "fishing expedition" and should
therefore avoid reading material that is obviously personal such as private e-mails and diary
entries. Reading personal e-mails may also raise issues under the Data Protection Act 1998, the
Regulation of Investigatory Powers Act 2000 and the Telecommunications (Lawful Business
Practice) (Interception of Communications) Regulations 2000 (See Practice note, Email and
internet use: the monitoring minefield (www.practicallaw.com/3-200-4245) ).
The investigation must be "even-handed" in order to be reasonable. In cases which may result in
dismissal, particularly where the employee has been suspended and therefore has no access to
witnesses during the investigation, the investigation should not simply be a search for evidence
against the employee, but should also include evidence that may point towards innocence (A v B
[2003] IRLR 405).
Reluctant witnesses
The evidence of witnesses is often crucial to the investigation, particularly in cases of misconduct.
Witnesses should be interviewed privately and the need for confidentiality should be emphasised.
Notes should be made of the statement or of the information provided by the witness and where
possible the witness asked to sign the statement to confirm that the version of events taken down
by the interviewer is correct.
A common problem faced by employers is that of the reluctant witness or the witness who will
only provide information if they are given an assurance of anonymity.
The employer should try to establish the reason for any reluctance and, if the witness is an
employee, then they should be reminded of the obligation of good faith or fidelity owed towards
the employer. It is unlikely, however, in the absence of an express obligation, that this implied
Conducting a disciplinary investigation and hearing – RFU Guidance
11
duty would require a junior employee to inform on a colleague (see Practice note, Implied terms
in employment contracts: Duty of fidelity (www.practicallaw.com/9-200-2045) .)
Anonymity
With a request for anonymity the reason for the request and the motives of the informant needs to
be explored. If a tribunal is asked to rule on whether a subsequent dismissal was fair, it must
consider whether the employer's investigation was within the band of reasonableness. In doing so
it should investigate why there was a need for anonymity and carry out a balancing act between
that perceived need and the employee's need to know details of the case against him (Surrey
County Council v Henderson UKEAT/0326/05/ZT; Legal update, Unfair dismissal: reasonable
investigation and confidentiality of informants (www.practicallaw.com/3-201-6837) ).
In a small workplace, or in instances where the witness is genuinely in fear of physical violence,
various steps can be taken to protect the witnesses' identity. The reality is, however, no
guarantee of complete confidentiality to the witness can be given. There may always be a risk
that subsequent criminal or civil (including employment tribunal) proceedings are issued and the
accused employee will seek disclosure of the witness statements or notes of interview, which will
identify the witness.
In ordinary disciplinary proceedings, witnesses' anonymity may be protected (Ramsey v Walkers
Snack Foods Ltd [2004] IRLR 754 (see Bulletin, PLC Magazine, 2004 (www.practicallaw.com/9102-6924) )). It is not necessary as a matter of course for the employee to know the identity of
witnesses. What is important is that the employee knows the case they have to answer.
Therefore, they need to know what allegations have been made against them in order that they
can respond to them. It is permissible therefore for an employer to ensure that nothing is
disclosed which could identify the maker of the statement. This could include deleting any
references in the body of the statement which may lead to identification of the source in addition
to their actual name. Even in employment tribunal proceedings an employer may be allowed to
disclose statements in an anonymised or redacted form to protect the identity of the witness
(Asda Stores Limited v Thompson [2004] IRLR 598).
Guidelines for protecting witness anonymity
The case of Linfood Cash & Carry Limited v Thompson [1989] IRLR 235 sets out a number of
guidelines to assist employers in balancing the need for a fair hearing with the protection of
witnesses and informants:



The information given by the informant should be put in writing in one or more
statements. Although the employer may need to erase certain parts before showing the
statement to others (if anonymity is to be preserved), the statements should initially be
taken without regard to that fact.
When taking witness statements consider the following:
o The date, time and place of observations and incidents;
o The witness's opportunity and ability to observe the incident clearly and with
accuracy;
o Relevant circumstantial evidence such as the individual's knowledge of working
arrangements, his reasons for being present and viewing the incident, and why
he remembers certain small details; and
o Whether the witness has suffered at the hands of the accused or has any other
reason to fabricate evidence.
Corroboration of witness evidence is desirable. Once witness statements have been
taken, further investigation may be required to verify or undermine the information given.
Conducting a disciplinary investigation and hearing – RFU Guidance
12







It may be appropriate to make tactful enquiries into the character and background of the
witness, and in relation to any other information which may add to or detract from the
value of their evidence.
If the witness is genuinely in fear of their identity being disclosed to the employee
accused of misconduct, and as a result is not prepared to attend a disciplinary hearing,
the employer will need to decide whether or not to continue with the disciplinary process.
If a decision is taken to continue, those conducting the hearing should interview the
witness themselves, and satisfy themselves as to the weight to be given to the witness's
evidence.
Witness statements should be made available to the employee accused of the
misconduct and his representative, if necessary, with appropriate omissions so as to
avoid identification of the witness.
If the individual accused of the misconduct, or his representatives, raise issues which
need to be put to the witness, an adjournment may be desirable so that the chairman can
make those enquiries.
Full and careful notes should be taken at the hearing.
If evidence is to be taken from an investigating officer at the hearing, it should be
prepared in written form.
The rights of the employee being investigated
As noted above, there is often a fine line to be drawn between the need to investigate fairly and
the rights of the employee being investigated. Regard should therefore always be had for the
implied duty of trust and confidence owed to the employee. An employer must be careful that any
investigation conducted is no more than is necessary to ascertain the full facts, as is the case in
any search for physical evidence. The employee may have additional contractual rights enshrined
in their contract of employment or any disciplinary procedure, policy or statement incorporated
into the contract of employment. Failure to follow these could result in a breach of contract and
possible constructive dismissal (www.practicallaw.com/8-200-3106) claim.
Thought should be given as to what clients, colleagues and external third parties are told about
an employee's suspension, taking particular care that any statement made does not betray any
assumption of guilt that may prejudice the fairness of a subsequent disciplinary hearing.
Keeping records of the investigation carried out is vital to ensure that the employee in advance of
any disciplinary hearing is provided with copies of all evidence that the employer intends to rely
upon at any disciplinary hearing. The employer should also bear in mind that documents collated
for the purposes of the investigation may need to be made available to the employee if he makes
a subject access request under Section 7 of the Data Protection Act 1998 or, in the event the
matter becomes litigious, through the normal rules of disclosure in litigation. In responding to a
subject access request, the employer should consider whether the disclosure of certain
documents is appropriate, given the risk that they may identify third parties or contain personal
data about them (see Practice note, Data subject access: Employers' obligations
(www.practicallaw.com/4-200-2161) ).
Disclosing the evidence
Ideally all witness statements and other documents to be relied on should be made available to
the employee before the hearing. This helps to give the employee a full picture of the nature of
the allegations and the case they have to meet. Obviously if the employer has given a promise of
anonymity to any witnesses, steps will have to be taken to amend the witness statements for this
purpose (see Reluctant witnesses).
Conducting a disciplinary investigation and hearing – RFU Guidance
13
It will be helpful if the investigating officer also prepares a report summarising the steps taken in
the investigation, the allegations, and the evidence available in respect of them which may assist
with the conduct of the disciplinary hearing.
There is no hard and fast rule that a failure to disclose witness statements will always make a
dismissal unfair. Provided an employee is fully aware of the case against them, a tribunal may
find that the lack of disclosure of the actual witness statements does not render a dismissal
intrinsically unfair (Hussain v Elonex plc [1999] IRLR 420 (CA), Bulletin, PLC Magazine, June
1999 (www.practicallaw.com/8-101-0160) ; see also Fuller v Lloyds Bank plc [1991] IRLR 336,
EAT). Nonetheless, disclosure of the statements is usually the easiest way to make sure the
employee is aware of the full details of the allegations.
The disciplinary hearing
Depending on the outcome of the investigation, an employer must consider whether formal
disciplinary action is required. Subject to any additional requirements that may be stipulated by an
employer's own disciplinary procedure, the following steps should be adopted:

The employer should write to the employee to confirm the outcome of the investigation
and set out the allegations and the basis of the allegations. This information together with
an invitation to the disciplinary meeting should be sent to the employee. For employees
who live within a reasonable travelling distance of the employer it may be better to use a
courier rather than relying on the post. If not, recorded or registered mail should be used
to prevent any allegation that the letter was not received by the employee. Of course, if
the employee is still working the letter can be given in person.

The disciplinary hearing should be convened at a reasonable time and place. It should
certainly be conducted during normal working hours and consideration should be given to
its location. If the matter is of a particularly sensitive or confidential nature it may be
advisable for the meeting to be conducted away from the employee's place of work. An
employee should be given sufficient time to consider the allegations and should normally
be provided with copies of any documents or evidence which the employer intends to rely
on at that hearing.

It may also be advisable to send the employee a copy of the employer's disciplinary
procedure, so that the employee understands the process. Furthermore, although it is not
a strict requirement, the ACAS Code advises employers to inform the employee of the
right to be accompanied (see Right to be accompanied).
In cases of serious or gross misconduct where dismissal is a potential sanction the employee
should be alerted to this. Case law has established that the employee needs to know that he is
"fighting for his job". Sometimes, however, an employer will not know the level of sanction to
impose prior to any disciplinary meeting until they have heard what the employee has got to say
and taken into account any mitigating circumstances. This is in itself good reason to follow the
statutory DDP, as a matter which may seem relatively minor at the outset and likely to only result
in a warning and to which the DDP does not apply, may transpire to be a much more serious
matter such that dismissal or action short of dismissal (other than a warning) is likely. In such a
situation an employer would either have to risk non-compliance with the DDP and therefore risk
an automatic finding of unfair dismissal or restart the whole process if they have not complied
with the DDP. Thus, in all but the most minor cases it is advisable to follow the proper procedure.
Personnel
Conducting a disciplinary investigation and hearing – RFU Guidance
14
Where possible, it is good practice to ensure that the individual holding the disciplinary hearing is
not the person who also conducted the investigation (see Who should conduct the
investigation?). Otherwise, the decision maker may not be seen to be impartial. The ACAS Code
acknowledges, however, that it may not be practical in small organisations to designate different
roles to different people. The disciplinary procedure is not a "judicial inquiry" (Slater v
Leicestershire Health Authority [1989] IRLR 16; Sartor v P and O European Ferries (Felixstowe)
Ltd [1992] IRLR 271). If the employee has been suspended it is also preferable in a larger
organisation if the person who took the decision to suspend is not conducting the disciplinary
hearing, for the same reason. Again, failure will not necessarily make a subsequent dismissal
unfair in every case (Barlow v Clifford & Co (Sidcup) Ltd (not yet reported) UKEAT/0910/04/DZM,
28 September 2005).
Regard should be had to the question of who might hear any potential appeal, as the DDPs
require that, wherever practicable, the person conducting an appeal should be senior to the
person conducting the disciplinary hearing itself (paragraph 13(3), Schedule 2, Employment Act
2002).
Where possible, in addition to the person conducting the meeting, it is advisable to have a second
person present from the employer's point of view, who can take notes. In larger employers this
person is often an HR representative, who can also advise the manager on any procedural points
as they arise. Although the employee may often have their own witness at a disciplinary hearing
who has taken their own notes, again it is good practice to ensure that the employee is provided
with a copy of the employer's notes and, where possible, their signature obtained to confirm their
agreement as to the notes' accuracy.
Procedure







At the start of the meeting, the manager conducting the hearing should introduce those
present and, if the employee is unaccompanied, remind the employee again of their right
to be accompanied.
The manager should ensure that the employee is comfortable, has read the applicable
disciplinary procedure and has received copies of any documentation that may have
been sent to them.
A final check could be made as to whether any reasonable adjustments need to be made
if the employee is disabled, although this should ideally have been addressed at the time
the employer first contemplated arranging a hearing.
The manager should lead the meeting and explain in some detail the allegations that
have been made against the employee and what evidence the employer is relying upon
in support of those allegations.
The employee should be invited to ask questions as necessary.
The employee should then be given the opportunity to present their version of events and
produce any evidence in support.
Once the employee has presented their case, the employer should summarise the
information put forward by both parties and any clarification from the employee should be
requested at this point.
The meeting should then be adjourned. Issues may have been raised by the employee that
requires further investigation by the employer. If there is any further investigation, the employee
should be given the chance to respond to the findings at a reconvened hearing.
Even if there is no need for further investigation and the employer has an idea as to the sanction
it wishes to impose, it is always good practice to adjourn the meeting to consider the decision.
This ensures that proper consideration is given to what has been discussed at the meeting and
that the employee can see that they have been treated fairly and reasonably. Announcing the
Conducting a disciplinary investigation and hearing – RFU Guidance
15
decision immediately after the employee has finished speaking would suggest a predetermined
outcome.
The length of the adjournment will depend on the complexity of the issues to be considered and
whether further investigation is needed. The employee should be given an indication of how long
it is likely to be before the meeting is reconvened to communicate the decision.
Employers should be mindful throughout the process to remain polite and calm, which is
sometimes easier said than done. The employee, who will inevitably be under stress, may react
in a way not anticipated by the employer and be bad tempered, angry, abusive or visibly
distressed. An employer should be sensitive to this, and if necessary make sensible use of
adjournments for time out and to allow employees to regain their composure before continuing.
Witnesses at the hearing
One issue that often arises is whether witnesses should attend disciplinary hearings and, if so,
whether the employer should allow the employee or his companion to cross-examine the witness
on points where evidence conflict.
The employment tribunals and the Appeal Courts have been at great pains over the years to
emphasize that a disciplinary hearing is not a quasi-judicial hearing. However, there is some
debate as to whether refusing to allow the employee to cross examine witnesses could be
considered unreasonable and therefore potentially lead to successful claims of unfair dismissal.
In Ulsterbus Limited v Henderson [1989] IRLR 251, the Northern Ireland Court of Appeal held that
an employment tribunal had erred in holding that cross-examination of witnesses was necessary
as an element of fairness. The Ulsterbus case involved witnesses who were members of the
public, not fellow employees, and so it had been argued that the same principle might not apply
where the witness is an employee. However, the EAT (www.practicallaw.com/8-200-3187) has
more recently confirmed that cross-examination of employees is not always a necessary element
of a fair disciplinary procedure, although there is no absolute rule that an employer would never
have to allow cross-examination. Each case must be examined on its facts (Santamera v IEC Ltd
t/a Express Cargo Forwarding [2003] IRLR 273).
The test to be considered is one of reasonableness under section 98(4) of ERA. The conduct of
the investigation must have been within the "band of reasonable responses" available to the
employer (Sainsbury's Supermarkets v Hitt [2003] IRLR 23, Bulletin, PLC Magazine, December
2002 (www.practicallaw.com/5-101-8290) )). There may well be cases in which it would be
impossible for an employer to be deemed to have acted fairly and reasonably unless crossexamination of a particular witness was permitted: for example, where the decision to dismiss
turns on a crucial issue of fact which is the subject of conflicting evidence. However, the EAT in
Gillen v Taunton & Somerset NHS Trust UKEAT/0788/04/LA, 7 June 2005 upheld a tribunal's
decision that a doctor had not been unfairly dismissed despite not being allowed to crossexamine a patient who had made allegations of serious sexual misconduct. The case for
dismissal turned on whether the doctor had in fact had sexual relations with the patient (and
others who had made similar allegations), which he denied. The EAT noted that this was a case
at the "higher end of the scale" in terms of the seriousness of the allegations and the likely
damage to the doctor's career if he were dismissed. Nevertheless, it upheld the tribunal's decision
that the investigation had been reasonable, and that the doctor had been given the opportunity to
present his case.
It may be thought unlikely in most cases that a tribunal would criticise a failure to allow crossexamination, provided there have been sufficient safeguards to ensure that the employee has
had a full opportunity to present their version of events, and the employer has carried out as
Conducting a disciplinary investigation and hearing – RFU Guidance
16
much investigation as is reasonable, including adjourning the hearing to re-interview witnesses in
the light of what the employee has said, and reconvening to allow the employee a further right to
respond.
In any case the employer will not wish to call witnesses to whom it has given an assurance of
anonymity (see Reluctant witnesses).
Postponement or failure to attend
Employees often seek to postpone disciplinary hearings, either through their desire to have more
time to consider their position or because of non-availability of their chosen companion. If an
employee fails to attend through circumstances such as illness that are outside their control and
were unforeseeable at the time the meeting was arranged, the employer should arrange another
meeting.
If the employee then seeks to postpone the rearranged meeting or simply fails to attend, the
approach under the statutory DDPs is that a decision can be taken in the employee's absence.
There would therefore be no automatic finding of unfair dismissal since the DDP would be treated
as having been complied with (regulation 13, Dispute Resolution Regulations). However, this "two
strikes and out" may not be sufficient to ensure a fair dismissal, if a tribunal considers that a
hearing with the employee present may have resulted in a different decision. Issues that arise
where employees absent themselves from a disciplinary hearing by reason of ill health are
explored below (see Ill health and stress).
The statutory rules with regard to companions are slightly different. If the employee's companion
cannot attend on the proposed date, the onus is on the employee to suggest another date, and
the employer must accept it so long as it is reasonable and it is not more than five working days
after the date originally proposed by the employer. This five-day time limit may be extended by
mutual agreement. (section 10(4) and (5), Employment Relations Act 1999 (ERelA)).
In practice, many employers would make no distinction as to whether the reason for
postponement was the unavailability of the employee or the companion, and would simply agree
an alternative time with the employee unless it becomes apparent, after the first occasion, that
the employee is simply stalling.
Ill health and stress
A common problem for employers is that of the employee who, on being told to attend a
disciplinary hearing, absents themselves by reason of ill health, frequently citing stress as the
cause. The employer is then caught in the middle: on the one hand there is a need to ensure that
matters are dealt with speedily, particularly if it is a serious case involving, for example, sexual
misconduct. On the other hand, the employee may genuinely not be well enough to attend a
hearing. An employer should therefore be prepared to adjourn a disciplinary hearing for a
reasonable period of time, the length of which will depend on the individual circumstances of each
case.
If the employee is still absent after a period of time the employer, may, subject to the employee's
consent, obtain medical advice from either the employee's own GP or an independent doctor as
to whether the employee is well enough to attend a disciplinary hearing and, if not, when they are
likely to be (see Practice note, Obtaining a medical report on an employee
(www.practicallaw.com/1-200-4010) ). Sometimes the employment contract may require an
employee to submit to a medical examination by the employer's doctor. Failure to do so on the
Conducting a disciplinary investigation and hearing – RFU Guidance
17
part of the employee may be misconduct, but this is unlikely on its own to give the employer
grounds for dismissal.
The employer should ask the doctor for an estimate of the time within which the employee is likely
to return to work. The employer may decide that the matter can wait, but should ensure that
matters are not allowed to drag on if the predicted return date is constantly being extended.
Sometimes, in stress-related cases, employees or their GPs will assert that no return to work is
possible while disciplinary proceedings are "hanging over their head". Things may easily reach
the point at which no further delay can be withstood, bearing in mind that the ill employee may not
be the only individual with an interest in the matter being resolved, and that the memories of
witnesses may fade with time. In these situations, the employer must take a decision. In a minor
case, it may decide simply to let matters drop in the interests of rehabilitating the employee as
soon as possible. However, if the matter is more serious, the employer may simply have to find
alternative means of proceeding. Consideration can be given to other ways of conducting the
disciplinary hearing, such as by telephone, at a place or location nearer the employee's home
address, or even inviting the employee to submit written submissions and holding a hearing in
their absence. They would still have the right to appeal the decision and a full rehearing could be
held at that stage if requested and appropriate.
The statutory DDPs require that the disciplinary hearing must be held at a reasonable time and
place. The employer should consider whether requiring the employer to attend the workplace
during a period of illness breaches one or possibly both of these requirements. However, where it
is not practical for a party to take the next step in a statutory DDP (such as holding the hearing)
within a reasonable period, both parties are treated as having complied with the procedure.
Therefore, it may be that, as a result of long-term illness, the DDP is treated as having been
complied with.
Ultimately, the need for a timely resolution may compel the an employer to hold a disciplinary
hearing in the employee's absence and make a decision on the basis of all the evidence
available.
Right to be accompanied
Sections 10 to 15 of ERelA give workers and employees a statutory right to be accompanied by a
trade union representative or a fellow worker at a disciplinary hearing.
Disciplinary hearings
Disciplinary hearings for the purposes of this right are hearings (including meetings under a DDP)
that could result in:



A formal warning being issued to a worker;
The taking of some other disciplinary action, such as suspension without pay, demotion
or dismissal; or
The confirmation of a warning or some other disciplinary action, (as would be the case
with an appeal hearing).
(Section 13(4), ERelA.)
Meetings merely to investigate allegations are therefore not "disciplinary hearings". If it becomes
clear therefore that during the course of such a meeting that a disciplinary hearing is necessary
against the worker, the meeting should be ended and a formal hearing arranged at which the
worker will have the right to be accompanied.
Conducting a disciplinary investigation and hearing – RFU Guidance
18
Choice of companion
The companion should be someone who is either:



Employed by a trade union of which they are an official;
An official of a trade union (not employed by the union) whom the union has certified in
writing as having appropriate experience of, or as having received training in, acting as a
worker's companion at such hearings; or
Another of the employer's workers.
(Section 10(3), ERelA.)
The employee does not have to be a member of the trade union to which the official belongs and
there is no requirement that the employer should recognise the trade union.
Reasonable requests
The right to be accompanied only applies where a worker reasonably requests to be
accompanied at the hearing. The legislation does not address the question of when such a
request would not be reasonable, but the ACAS Code provides some assistance:
"When workers are choosing a companion, they should bear in mind that it would not be
reasonable to insist on being accompanied by a colleague whose presence would prejudice the
hearing or who might have a conflict of interest. Nor would it be reasonable for a worker to ask to
be accompanied by a colleague from a geographically remote location when someone suitably
qualified was available on site".
Role of companion
The role of the companion is limited. The companion is permitted to address the disciplinary
hearing (including putting the worker's case, summing up, and responding on the worker's behalf
to any view expressed at the hearing) and to confer with the worker during the hearing. There is
no right to answer questions on behalf of the worker, address the hearing contrary to the worker's
express wishes, or act in a way that prevents the employer explaining its case or prevents any
other person making a contribution to it. (Section 10(2B)-(2C), ERelA 1999). The ACAS Code
does say, however, that it is good practice to allow the companion to participate as fully as
possible in the hearing.
Matters involving the police
Occasionally, an employer may wish to question an employee as part of an investigation or
disciplinary hearing in relation to an incident that is also the subject of police enquiries and
possible criminal charges. The employee may therefore refuse to respond to questions, often on
legal advice, on the basis that questions could prejudice a pending trial or interview.
The employer should permit the employee to have an opportunity to make any statement he may
wish to volunteer and this should ideally be when he has had time to consider his position. What
an employer should not do is interrogate the employee or seek to pressurise the employee into
making any admissions of guilt. There is authority from the Court of Session in Scotland (which
was not strictly followed in England) suggesting that it would be improper for the employer to hold
an internal inquiry where a future criminal trial might be prejudiced by any admission the
employee may make, and that it would therefore not be unfair in such cases to dismiss without a
Conducting a disciplinary investigation and hearing – RFU Guidance
19
hearing (Carr v Alexander Russell Ltd [1976] IRLR 220). This view can no longer be supported in
the light of the statutory DDPs, under which the employer must give the employee the opportunity
to present his case at a hearing unless a statutory exception applies. It does not appear that the
existence of pending criminal proceedings falls within any of the exceptions (regulations 4, 5 and
11, Dispute Resolution Regulations).
Employers will not usually wish to wait until the outcome of criminal proceedings to conduct a
disciplinary hearing, as this will usually take several months. This will be especially so if the
employee is suspended on full pay pending completion of the investigation. Furthermore, if the
standard DDP applies, the employer is required to hold the disciplinary hearing without
unreasonable delay, which would suggest that it should not wait for the conclusion of court
proceedings (paragraph 12, schedule 2, Employment Act 2002).
Level of employer's investigation
The test as to whether the employer has adequately investigated before dismissing an employee
is the same whether or not the police are involved. The employer must have a reasonable belief
in the employee's guilt, based on a reasonable investigation (Burchell), and the level of
investigation must have been within the band of reasonableness (Sainsbury's Supermarkets Ltd v
Hitt) (see The investigation, above). Where the charges against the employee are of a criminal
nature and the potential effects of a finding of guilt are potentially grave (such as an effective end
to the employee's chosen career), the investigation must be "careful and conscientious" and must
also be balanced, meaning that the investigator should look for (and put before the disciplinary
panel) evidence which may point towards the employee's innocence as well as guilt (A v B [2003]
IRLR 405).
Although most employers will wish to carry out their own investigation rather than waiting for the
police or criminal courts to reach their conclusions as to guilt, there is no general rule as to
whether it is sufficient for the employer to rely on a police investigation without also making its
own investigations. In some cases a tribunal may find on the facts that it was reasonable to rely
on the outcome of a police investigation, but in other cases an employer may be required to carry
out an investigation of its own (Harding v Hampshire County Council UKEAT/0672/04/ZT, see
Legal update, Disciplinary investigations following a police investigation (www.practicallaw.com/0201-0361) ). It is suggested therefore that employers should not, in general, rely solely on the
outcome of a police investigation.
Guilty or not guilty?
The test in the employment tribunal is not whether the employee was guilty of the misconduct, but
whether at the time of the decision to dismiss, the employer has formed a reasonable belief of the
employee's guilt, on reasonable grounds, and has carried out as much investigation as was
reasonable in the circumstances. The tribunal will then ask whether the employer acted within the
band of reasonable responses in treating the misconduct as a sufficient reason to dismiss.
This is therefore an area where much will depend on the individual circumstances of the case. In
some situations it may well be permissible for the employer to draw its own conclusions and
potentially to dismiss even in situations where an employee is subsequently found to be not
guilty.
The decision
Although up to this point the employer may well have conducted the disciplinary procedure fairly
and reasonably, it must also ensure, when considering what sanction to impose that its decision
Conducting a disciplinary investigation and hearing – RFU Guidance
20
is fair and reasonable in all the circumstances. If considering dismissal, the employer should
ensure it has given thought as to whether there are any other possible alternatives to dismissal,
such as a demotion, redeployment or final written warning. Employers have often lost cases
where, despite having followed a fair procedure, they have not persuaded an employment tribunal
that a dismissal was a fair and reasonable sanction in all the circumstances. The tribunal will ask
whether the employer acted within the band of reasonable responses in treating the misconduct
as a sufficient reason to dismiss.
Giving a warning is also not without its risks. The ACAS Code recommends that employees
should usually be given at least one chance to improve before a final written warning is given.
Employers may be in breach of the implied term of mutual trust and confidence if warnings,
especially final warnings, are used oppressively for relatively minor misconduct (Alexander
Russell plc v Holness, not yet reported, EAT/677/93), if the punishment given is out of proportion
to the offence, or if the employer does not believe the employee to be guilty of the offence for
which they is being punished (see the EAT's decision in McCabe v London borough of Greenwich
UKEAT/0608/04/DZM; Legal update, Constructive dismissal: disciplinary proceedings for gross
misconduct (www.practicallaw.com/3-201-6385) ). See also Practice note, Implied terms in
employment contracts: Mutual trust and confidence (www.practicallaw.com/9-200-2045) .
Employers should consider the level of sanction which has been imposed on other employees in
the company in similar circumstances and act consistently with previous decisions unless there
are material differences in the circumstances or offence. In Enterprise Liverpool plc v (1) Bauress
(2) Ealey, UKEAT/0645/05/MAA, 30 January 2006 the EAT overturned a tribunal's decision that a
dismissal for misconduct was unfair. The tribunal had found that, on a previous occasion, an
employee in similar circumstances had not been dismissed for the same offence. However, in the
EAT's view, there were material differences between the two cases and it had been perverse for
the tribunal to find that dismissal in those circumstances was outside the band of reasonableness
(see Legal update, Unfair dismissal: consistency of treatment for misconduct
(www.practicallaw.com/1-202-0010) ). Employers must also take into account any live warnings
on the employee's personnel file. In Diosynth Limited v Thomson [2006] CSIH 5, 1 February
2006. the Inner House of the Court of Session confirmed however that an employer could not
take into account an expired written warning when deciding the sanction for a subsequent
disciplinary offence. The decision to dismiss the employee was found to be unfair because it was
clear that the employee would not have been dismissed if the written warning had not been taken
into account (see Legal update, Disciplinary procedures: expiry of warnings
(www.practicallaw.com/9-201-9319) .
Communicating the decision
The standard DDP requires that the employee be informed of the decision and the right of appeal.
Once the employer has reached a decision, the meeting should ideally be reconvened and the
decision explained to the employee. It is good practice for this to be confirmed in writing,
especially if the employee is being dismissed, in which case the employee would have the right to
ask for a written statement of the reasons for dismissal in any case (section 92, ERA).
The letter confirming the decision should set out clearly the allegations against the employee, the
findings in relation to each allegation and the factual basis and the reasons for the decision. The
employee should be in no doubt as to what action is being taken. If an employee is to be given a
warning, the period that any warning is to remain in force should be clearly stated along with the
possible consequences of any further misconduct or continuing unsatisfactory performance. If
there is a possibility that the 'live' period of the warning may be extended if the employee's
conduct does not improve sufficiently during the review period this must be made clear to the
employee. The employee should also be advised as to how and where the warning will be stored
and whether it will be removed from their personnel file once it has expired. In exceptional
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circumstances it may be appropriate for a warning to remain live indefinitely but this would need
to be communicated very clearly to the employee.
Instructions on how to appeal should be provided (including the name of the person to whom the
appeal must be submitted, and whether or not it should be in writing) The time-scale for lodging
an appeal should also be stated - the ACAS Code recommends five working days as a
reasonable time limit. (See Standard documents, Disciplinary procedure
(www.practicallaw.com/2-200-2138) and Letter giving final written warning
(www.practicallaw.com/6-200-2042) .)
Appeals
The importance of the right of an appeal has been asserted, both at common law by the House of
Lords in West Midlands Co-operative Society v Timpton [1986] 1 All ER 513, and also more
recently by statute in the form of the statutory DPPs. As stated above, where the DDPs apply, an
employee must be advised of the right of appeal when the employer's decision is communicated
(see Statutory dismissal and disciplinary procedures (DDPs)). Arguably this would apply even if
the final decision is merely a warning and falls outside the scope of "relevant disciplinary action",
since the DDP applies where the employer initially "contemplates" dismissal or relevant
disciplinary action, not merely where that is the actual outcome (regulation 3, Dispute Resolution
Regulations). In any case, many employers have internal disciplinary procedures that allow
employees to appeal even in situations involving a mere warning.
In the event an employee does not pursue an appeal but submits an application to the
employment tribunal for unfair dismissal, the employment tribunal may reduce any award of
compensation by between 10 and 50% if either of the DDPs applied (see Practice note, Statutory
dismissal and disciplinary procedures: Effect on compensation (www.practicallaw.com/4-2004221) ).
Conduct of appeal
So far as is possible, any appeal against, or review of, the dismissal or disciplinary sanction
should be heard by someone more senior than the person responsible for making the decision to
dismiss or imposing the disciplinary sanction in the first instance. It should certainly not be
someone less senior, who might simply defer to the decision of his superior. Ideally, if possible,
the person hearing the appeal should be outside the reporting line of the person who conducted
the disciplinary hearing. This will help avoid allegations that the manager responsible for the
appeal was biased, or simply supported their subordinate's decision as a matter of course, rather
than considering the matter afresh or properly reviewing the decision.
The employee should be asked to state their full grounds for appealing so that a decision can be
taken as to whether the appeal will be a review of the decision and evidence available at the
original hearing or whether it will be a full rehearing. The employee should be told what format the
hearing will take.
The manager conducting the appeal should have access to the evidence compiled during the
investigation and copies of the notes from the disciplinary meeting. However, he should not
confer with the initial decision-maker prior to the appeal meeting as this may lead to a biased
view being taken before the employee has presented his arguments on appeal.
Employees have the same right to be accompanied at a disciplinary appeal as at an initial
disciplinary meeting (see Right to be accompanied).
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It is possible that procedural defects in an initial disciplinary hearing may be remedied on appeal,
provided that the appeal is sufficiently comprehensive and takes the form in essence of a rehearing, not merely a review of the original decision (Whitbread v Mills [1988] IRLR 501). Note,
however, that this will not remedy a breach of the statutory DDP, which would render a dismissal
automatically unfair regardless of the conduct of the appeal.
New evidence arising at the appeal stage may be taken into account in justifying a dismissal,
even if the evidence available at the initial disciplinary hearing would not have justified it. This is
the case even if the appeal is a review and not a re-hearing (Arriva North West & Wales v
Colebourn, UKEAT/0439/05/MAA ; Legal update, Disciplinary hearings: evidence from a review
appeal could be taken into account (www.practicallaw.com/0-201-6419) ).
However, evidence that comes to light at the appeal stage may only be considered by a tribunal
for the purpose of assessing the fairness of a dismissal, if it justifies the original reason for the
dismissal relied on at the disciplinary stage. If the evidence demonstrates that a different reason
would justify dismissal (and not the reason actually given at the disciplinary stage), an employer
would not be able to rely on it to justify the dismissal (National Heart and Chest Hospitals Board
of Governors v Nambiar [1981] IRLR 196).
Record-keeping
Records should be made of all disciplinary proceedings. These records should include details of
the allegation, details of the investigation that was carried out and information which came to light
as a result, copies of correspondence sent to the employee with the statements sent and other
documents, notes from the disciplinary and any appeal meetings. Details of the sanction imposed
and any other information may also be relevant. Records of the disciplinary investigations and
disciplinary procedures are important, not only as a management tool, but also with a view to
ensuring that the employee's conduct or performance improves. It also helps to ensure that
disciplinary sanctions imposed in similar circumstances are consistent.
So far as possible, the rationale for decisions taken at various stages should be recorded: for
example, an employer may subsequently be required to justify the choice of investigator or
chairman of the disciplinary hearing, or why, following the investigation, it was decided that
disciplinary proceedings were warranted. The more contemporaneous the notes, the easier it will
be to recollect events and decisions taken at the time. Records kept should be clear and concise,
bearing in mind that it may be necessary not only to refer to them, but also to produce them
during the course of any subsequent disciplinary hearing or tribunal proceedings, or if the
employee makes a subject access request under the Data Protection Act 1998 (DPA). To ensure
that records of disciplinary proceedings are compliant with the DPA it is important that employers
only retain and use the documents in connection with the purpose for which they were obtained
and, once the proceedings are concluded are retained, for no longer than is necessary (see
Practice note, Employee records (www.practicallaw.com/3-200-2213) ).
ACAS core principles of reasonable behaviour

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Use disciplinary procedures primarily to help and encourage employees to improve rather
than as a means of imposing a punishment.
Inform the employee of the complaint against them, and provide them with an opportunity
to state their case before decisions are reached.
Allow employees to be accompanied at disciplinary meetings.
Make sure that disciplinary action is not taken until the facts of the case have been
established and that action is reasonable in the circumstances.
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
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Never dismiss an employee for a first disciplinary offence unless it is a case of gross
misconduct.
Give the employee a written explanation for any disciplinary action taken and make sure
they know what improvement is expected.
Give the employee an opportunity to appeal.
Deal with issues as thoroughly and promptly as possible.
Act consistently.
(ACAS Code of practice on disciplinary and grievance procedures.)
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