Presentation on theme: "How to Effectively Conduct Investigations and Disciplinary Hearings in a Town Council Presented by Rachel Fraser Employment Law Adviser (Additional."— Presentation transcript:
1 How to Effectively Conduct Investigations and Disciplinary Hearings in a Town Council Presented by Rachel Fraser Employment Law Adviser (Additional Slides)Woodhouse, Home of Ellis Whittam
2 Investigation : The Role of the Investigator What is the Investigator’s role in the process - considerationsWhat do the Council’s procedures say?What does ACAS say?Is the investigator simply fact gathering?Is the investigator conclusions for someone else to make a decision?Is the investigator making a decision?
3 ACAS Code of Practice ACAS Code of Practice on Disciplinary says: Establish the facts of each caseIt is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case.In some cases this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing.In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing.In misconduct cases, where practicable, different people should carry out the investigation and disciplinary hearing.If there is an investigatory meeting this should not by itself result in any disciplinary action.
4 Council’s Own Procedures What does the disciplinary policy say?What about the National Conditions on Pay and Service?What do the Standing Orders say or is there a protocol or procedure on Member/Officer Relations?Are there any contractual issues?
5 National Conditions on Pay and Service Disciplinary Procedures The employing authority should ensure that all employees are aware of the disciplinary rules and procedures that apply. All employees should also be aware to whom they can apply if they are dissatisfied with any disciplinary decision. These procedures should accord with legal requirements and with the ACAS Code of Practice and guidance.
6 Considerations Why are the Council investigating? Who is investigating?What is being investigated?When is the investigation taking place?Where is this investigation going to take place?Under what procedure is an investigation taking place?Are there any ‘conflicting rights / obligations’? e.g. Is the investigator a witness in the proceedings?Will witness statements be required?
7 Different Types of Investigation FormalInformal on noticeAmbush
8 Formal Investigation Formal Check procedure Is notice to be given? Is right to be accompanied to be given?Does Article 6 apply?What is Article 6?
9 Article 6 – Human RightsArticle 6 of the European Convention on Human Rights (ECHR) provides that, in determining civil rights or obligations or criminal charges, everyone is entitled to a "fair and public hearing by an independent and impartial tribunal established by law" (Article 6(1), ECHR).
10 Informal on Notice Investigation Check procedureWhy would this be used? Does the employee work away from the main Council buildings and so need them to attend the offices at a specific timeProcess the same as Formal
11 Ambush Investigation Check procedure Why would this be used? When you want to ask the employee questions without the benefit of time to prepare responsesProcess:Employee is invited in without noticeAsk them the investigation questions
12 Suspension? Questions: What does the procedure say? Can they be suspended?Should they be suspended?Who decides?What does ACAS say?Crawford and another v Suffolk Mental Health Partnership NHS Trust – the suspension should not be a knee-jerk reaction and should be ‘considered’
13 ACAS Code of PracticeIn cases where a period of suspension with pay is considered necessary, this period should be as brief as possible, should be kept under review and it should be made clear that this suspension is not considered a disciplinary action.
14 Going too far How can an investigation go too far? Making assumptions Making premature decisionsChastising and telling off
15 Getting it Wrong! Breach of contract Unlawful deduction of wages Unfair dismissalConstructive dismissalDiscrimination claim?
16 ConfidentialityExplain to the employee/witnesses that they should keep the matter confidentialWitness anonymity?Has there been any breaches of this during suspension?
17 Sickness Absence during Process Questions:Is the sickness absence related to the investigation e.g. Stress?Do you need to get a medical report?Can you deal with this in writing or at a neutral location?Can you continue in their absence?Discrimination claim?
18 Grievance during the Process Questions:What does ACAS say?Is the grievance related to the disciplinary process? e.g. Mitigation?Is the grievance related to those conducting the disciplinary process? e.g. Bullying and harassment.Do you need to pause the disciplinary process to hear the grievance?Can you deal with grievance at the same time as the disciplinary?
19 ACAS Code of Practice Overlapping grievance and disciplinary cases: Where an employee raises a grievance during a disciplinary process the disciplinary process may be temporarily suspended in order to deal with the grievance. Where the grievance and disciplinary cases are related it may be appropriate to deal with both issues concurrently.
20 Effective Record Keeping Have a minute taker present at the investigation/ disciplinary hearingsAllow the employee to agree the contents of the minutesAsk the employee and officer to sign a copy of the final agreed minutesNo need to have a ‘word for word’ account – just an accurate reflection of the meetingIs a recording really necessary?
21 Disciplinary Procedure Four key areasDisciplinary IssuesInvitationDisciplinary Hearing (Decision making process)Appeal
22 Key IssuesIs the employee aware of the rule or policy they have broken?Where is it stated?Have there being any changes?How can it be proven that the employee was aware?
24 Inviting to Disciplinary Hearing Disciplining Officer or PanelNot previously involvedIn writingRight to be accompaniedSufficient noticeWho disciplining officer isEnclose all available evidenceState allegations clearlyState potential outcome in invite
25 Conducting the Hearing Objective : to establish the truthIntroductionExplain structure of the meetingRolesState clearly nature of complaintEnsure matches allegations in invite letterObtain employees’ account and question itAdjourn for decision
26 What if it does not go as expected? Do not get involved in argumentsStop meeting if employee provides adequate explanation or there is no real evidenceAdjourn briefly if employee becomes upset, agitated or angry to give them to time to regain their composureNon attendance – consider length of service and if you need to give them a second opportunity to attend
27 Ending the Meeting Summarise the main points Summarise employee’s case Clarify any areas that need to be checkedCheck informant’s motivesConsider possible explanations and investigateFurther meeting needed?Adjourn before making a decision
28 Verdict What allegations uphold and why? If uphold allegation, what disciplinary sanction and why?
29 Decision Making sufficient investigation following procedure EW is there for advice and so it is always worth talking this through with your adviserProcedural consistency needed:sufficient investigationfollowing procedureWithin the range of reasonable responses – what does that mean?Consistency of disciplinary sanctions only required where virtually identical circumstances
30 Decision No case to answer Letter of concern Stage one warning Final warningDismissalOther sanctionDisciplinary transferDemotion / loss of seniority(must be allowed for in contract)
31 Next StepsOutcome of hearing and disciplinary action should be provided in writingThe reasons for the decision should be statedACAS Code of Practice – state change in behaviour requiredRight of appeal together with time limits and procedure should be confirmedIf final written warning, the employee should be warned that further misconduct within a set time period could result in dismissal
32 Dismissal With Notice Should be final step Normally taken after previous warnings are ignoredIf payment in lieu, termination is immediateCheck complies with statutory / contractual notice periods
33 Dismissal Without Notice ‘Summary dismissal’ means dismissal without prior warning or noticeOnly available if misconduct is gross!An employee must know what may constitute gross misconductGross misconduct is ‘Misconduct serious enough to destroy the employment contract between the employer and the employee and make any further working relationship and trust impossible.’
34 Appeal Invitation Right to be accompanied Ensure relevant records are availableRead evidence beforehandUnbiased manager or appointed Council PanelWhat does ACAS say?
35 Appeal Meeting At the meeting Employee to state why they are appealing Appeal officer/ Panel to consider carefully any new evidenceEmployee allowed to comment on itFurther investigation?Further meeting?Adjourn for decision
36 Appeal Outcome Make a decision Confirm decision in writing Revoke earlier decision?Procedural Issues?Lesser sanction?Confirm decision in writingNo further right of appeal (unless procedure allows for this!)