07 September 2016
Facing accusations of misconduct?
Conduct is a potentially fair reason for dismissal so, if an employer has accused you of misconduct, you should get independent legal advice to ensure your employment rights are protected. Elisabeth Kynaston, employment lawyer at B P Collins LLP in Buckinghamshire, looks at what you need to do if you are facing disciplinary proceedings for misconduct.
Misconduct is unacceptable or improper behaviour. Cases of minor misconduct, such as lateness, are usually dealt with informally. Where that does not work or the matter is more serious, your employer will normally take formal action. Gross misconduct is the most serious type of conduct and includes but is not limited to theft, fraud, fighting, drunkenness, harassment, serious negligence and serious breach of health and safety rules. It can result in the termination of your employment without notice.
Your employer has to give you details of its disciplinary rules and procedure for disciplinary decisions and appeals. This may be set out in your contract of employment or the staff handbook and you should ensure that you have a copy. Your employer should follow its own procedure when dealing with any allegation of misconduct. You and your employer should also follow the Acas Code of Practice on Disciplinary and Grievance Procedures, which is available on the Acas website. If either of you unreasonably fails to follow the code, and you make a claim, the employment tribunal can reduce or increase any compensation you are awarded by up to 25 per cent, depending on who was at fault.
What to do if you are suspended
Your employer may decide it is appropriate to suspend you while it carries out an investigation. If you are suspended, you should continue to receive full pay and the period of suspension should be as short as possible. If you are suspended, you should not attend work or contact any of your colleagues, clients or customers. If you need to get in touch with a colleague or obtain documents from your workplace to help you prepare for a disciplinary hearing, you should contact your employer.
The procedure your employer should follow
It is important for your employer to undertake a reasonable investigation before starting formal disciplinary action. It should establish the facts surrounding the allegations, which may involve interviewing and taking statements from you and other individuals and reviewing relevant documents and records. If your employer decides you have a case to answer, it should invite you to a disciplinary hearing, setting out details of the date, time and place of the hearing and giving you enough time to prepare. The letter should include details of the allegations against you, and your employer should give you copies of the documents it intends to rely on. The letter should also tell you about the possible outcomes.
The disciplinary hearing should be conducted by a senior manager, and a human resources manager may also attend to advise on procedure. Your employer will go through the evidence that came out of the investigation, give you an opportunity to respond and present your version of events, and establish whether any further investigations need to be carried out before a decision can be reached. You are allowed to call witnesses to give evidence on your behalf. If your employer calls witnesses, you are entitled to question them.
Following the hearing, your employer will consider whether the allegations have been upheld and, if so, the appropriate action. They will write to inform you of the outcome and, if you disagree, you will have the right to appeal. Any appeal should be dealt with by a more senior manager.
Your right to be accompanied to hearings
You have a legal right to bring a companion with you to any formal disciplinary or appeal hearing. This can be a colleague or a trade union representative of your choice. Your companion is allowed to ask questions and make representations on your behalf. They can confer with you during the hearing but cannot answer questions put to you.
In limited circumstances you can take a lawyer to a disciplinary hearing. This is usually only if your employment contract allows this, or if the outcome of the disciplinary hearing could influence a regulatory body that has power to bar you from your profession, such as for a doctor.
How to conduct yourself at hearings
You should attend the hearing in person if at all possible. If you do not turn up because you are ill, your employer should postpone it. However, if you fail to attend due to another reason or you do not go to the postponed hearing, your employer can go ahead in your absence.
You should ensure that you prepare properly for the hearing by reading all of the documents sent to you by your employer and considering what you will say. If the allegations are not true, you need to gather evidence to demonstrate this. If they are true, think about why you behaved the way you did and whether there are any mitigating factors, such as provocation or relevant personal circumstances.
A hearing is stressful and it is important to stay calm. You should ask for a short break if you need to compose yourself. You or your companion should take notes during the hearing so that you have a record of what was said.
The possible outcomes
If your employer decides that you are guilty of misconduct, it will normally impose one of these penalties, depending on how serious the misconduct is and whether you have live warnings on your disciplinary record:
- first written warning;
- final written warning;
- dismissal on notice; or
- dismissal without notice for gross misconduct.
Your contract may also include other sanctions, such as suspension without pay, demotion or redeployment.
In some cases, your employer may offer you a settlement agreement as an alternative to the formal procedure. This will normally result in your employment coming to an end in return for a financial settlement. The terms will be recorded in a settlement agreement in which you give up any legal claims. You will need to take legal advice on the agreement in order for it to be binding and your employer will normally pay a contribution towards the cost.
If you have been accused of misconduct, you are going through a disciplinary procedure or you have been offered a settlement agreement, contact Elisabeth or a member of the employment team for advice. Call 01753 279029 or email email@example.com.