In order to comply with the ACAS Code on Discipline and Grievance, then any such procedures should follow the three-stage process as a minimum; Step 1 – Investigation, Step 2 – Hearing and Step 3 – Right of Appeal. Failure to comply may result in an up-lift to a potential award of up to 25% in certain cases.
This blog focuses on Stage 1, ‘The Investigation’:
- After preliminary investigations are carried out by the Company to establish whether there is a case to answer, the employee in question must always be met with as part of the investigation, sound common sense doesn’t it! The allegations must be clearly communicated and this is best served in a letter handed to the employee at the start of the investigation meeting.
- There is no statutory right to provide notice for an investigation meeting but be careful that this meeting doesn’t turn into a ‘hearing’ by default.
- No formal warnings should be issued at an investigation meeting.
- There is no statutory right to be accompanied at an investigation meeting but me mindful of the following when considering a request from an employee to be accompanied:
- This does not mean you can say no in every circumstance – If the employee is disabled and are therefore protected by the Equality Act 2010, having the employee in question to be accompanied could comply with the requirement to make ‘reasonable adjustment’ for such employees.
- Allowing an employee to be accompanied, can mean they have greater confidence in the process and therefore they may co-operate more fully.
- If there is likely to be a language barrier, then a companion may facilitate more meaningful discussion with the employee.
- You could still apply the same conditions as if the employee had a statutory right to be accompanied, in that the companion has no right to answer on behalf of the employee but the companion could participate by clarifying the employee’s responses.
- All evidence including witness Statements should be issued to the employee at the investigation Stage, this should be ‘an open process’. You should only agree to anonymity for a witness in extreme circumstances, such as if there is a real risk or real threat of violence or similar.
- Your disciplinary process may provide you with an informal recourse should you decide not to progress any further but if you wish to note for the record the issues discussed.
Should you decide the evidence support the needs to discuss this further at a formal disciplinary hearing, you must also then comply with notification requirements of that next stage.