Disciplinary investigations and hearings. Darren Newman

Transcription

1 Disciplinary investigations and hearings Darren Newman

2 Disciplinary Investigations and hearings Roles and responsibilities What makes a fair investigation The right to be accompanied Running a fair disciplinary procedure Reaching the right conclusion

3 The role of the investigator To gather evidence To establish uncontested facts To present the evidence surrounding contested facts To enable a decision on whether to take matters to a hearing To facilitate an efficient hearing by presenting relevant evidence cogently and logically

4 A fair investigation is Open minded Unbiased Reasonably thorough Relevant Prompt

5 General principles Even-handed. Focus as much on evidence pointing to innocence as evidence pointing to guilt (A v B. EAT, [2003] IRLR 405) Particularly serious consequences for employee may mean investigation needs to be even more rigorous (Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721)

6 Stages of an investigation Initial scope and briefing Interviewing witnesses Interviewing employee Gathering and collating documents Writing up notes Compiling an investigatory report

7 Structure of a report Terms of reference 1 page Agreed Chronology 1-2 page Dramatis Personnae 1-2 pages Method statement 1 page Evidence Conclusion 1 page Recommendations 1 page

8 Purpose of the report To recommend whether there is sufficient evidence to warrant a hearing To inform the hearing of the evidence that has been gathered To assist the hearing in considering the issues in a logical and structured way To give the hearing a framework for making its decision To ensure the hearing considers the issues properly and logically To assist the employee in knowing what case has to be met and allowing him or her to prepare a response

9 The right to be accompanied Right to be accompanied in a disciplinary and grievance hearing Difference between a meeting and a hearing Accompanied by a fellow employee or a trade union official Request to be accompanied must be reasonable but can t object to identity of companion Individual cannot be compelled to be a companion Time off rights for companion

10 Dealing with a representative It is in your interests for the employee s case to be put as effectively as possible Representative should be given a clear opportunity to comment and make representations at each stage However, a hearing is not a negotiation The Chair must control the meeting Entitled to prevent representative from being disruptive

11 Companion not available Where employee has been invited to a hearing And the representative is not available Employee can notify employer of a new hearing date: Must be reasonable Must be within 5 working days Hearing then takes place on that day

12 Suspension Must not be a knee-jerk reaction Only where there is a clear and cogent allegation Must serve a clear purpose Must be as brief as possible Must be on full pay (unless the contract very specifically says otherwise) Take care not to assume that suspension means guilt

13 Communicating with employee Clearly explained allegation in writing No moving goalposts during the course of the disciplinary Evidence disclosed sufficiently in advance to allow employee to prepare Anonymous evidence only where there is a clear need to protect source

14 Getting to the hearing Clear explanation of the purpose of the hearing what has to be decided Arranged at a time that is reasonable for the employee to attend Arranged at a place which allows for privacy and appropriate comfort

15 Not a negotiation Explain Listen Consider Decide

16 The employee s story You are trying to decide what happened not extract a confession You do not need to get the employee to see it your way or agree with your analysis Ask questions rather than argue: do you agree that not but don t you see that Be honest and straightforward don t set traps Cross examination is what you do in order to undermine someone s case not appropriate when chairing the meeting

17 Live witnesses May be called by either employer or employee Employee s witnesses can choose whether to attend or not May have produced a statement as part of investigation Ask them to confirm the statement is true Ask questions aimed at clarifying their evidence Allow employee or representative to cross examine

18 Cross examination Entitled to insist on a courteous manner Difference between a question and an argument Feel free to intervene if discussion is going round in circles: I think we ve covered that point Can confine questions to issues that you have to decide: How is this relevant? Can keep control of time can t go on forever

19 Deciding the facts All findings of fact must be based on reasons why do you conclude that the fact is true? One person s word against another: whose evidence do you prefer and why? Some things are inherently unlikely and need more cogent and convincing evidence to persuade you that they are true

20 Framing your conclusions Go back to accusation what were the key allegations Which of them are upheld and which are not If some are upheld how serious are they? What mitigating circumstances have you taken into account? What is your decision on outcome?

21 Mitigating factors Factors which tend to make the misconduct seem less serious: Unusual and out of character Provocation Good underlying motive Stress and heat of the moment Being led astray Remorse

22 Aggravating factors Factors which tend to make conduct seem more serious A pattern of behaviour Lack of remorse Deliberate disobedience or dishonesty Leading others astray being the ringleader Refusal to accept responsibility Likelihood of repeating misconduct

23 Disciplinary checklist Grounds for disciplinary action are clearly explained and have not changed over the course of the process All relevant evidence has been disclosed to employee prior to disciplinary hearing Employee is aware of potential sanction arising from process Employee given opportunity to be represented Disciplinary panel not involved in investigation of incident

24 Kay Fairness Factors Clarity Consistency Something else starting with C

25 Keeping a record Transcripts can be difficult and messy Procedure requires recording and transcript of stage 3 hearings Other hearings only need a written note Employee can be asked to sign record as accurate If employee refuses make note of points added / disputed Keep record of offer to employee to sign record