Can the Same Person Carry Out a Disciplinary Investigation and Chair the Disciplinary Hearing?

The first step when a disciplinary issue arises is for an appropriate manager or supervisor to establish the facts as soon as possible before recollections fade.  This often includes taking statements from available witnesses where appropriate, and keeping written records for later reference.

In a misconduct case, the preference is for different managers to deal with the investigation and any subsequent disciplinary procedure.  The Acas Code of Practice states “in misconduct cases, where practicable, different people should carry out the investigation and the disciplinary hearing”.  This is because the decision-maker may not be seen to be impartial.  If the employee has been suspended, it is also preferable in a larger organisation for the person that took the decision to suspend the employee not to conduct the disciplinary hearing.

Small employers may wish to consider instructing an external HR consultant to conduct the investigation or disciplinary hearing who is independent to avoid any actual or perceived bias.

In the event that the same person carries out the investigation and the disciplinary process, an employer will have to demonstrate that it was not practicable for different people to be involved in the two stages.  An employer will be judged by the standards of a hypothetical reasonable employer, and the Employment Tribunal will consider whether the course of action is reasonable taking into account all the circumstances of the case.

It should be noted that a failure to comply with the Acas Code of Practice could result in an uplift of 25% of any award ordered Employment Tribunal in a claim of unfair dismissal.

From the outset, it is important for the employer to consider carefully which individual will deal with each aspect of the process including who will deal with any appeal process in the event that the employee is issued with a disciplinary sanction such as a written warning or dismissal.

If you require any advice on how to conduct a fair disciplinary process, please contact Farleys’ employment law solicitors in Lancashire and Manchester on 0845 287 0939 or send your enquiry through our online contact form.