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