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 - considerations
What 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 case
It 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
Formal
Informal on notice
Ambush

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 Rights
Article 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 procedure
Why 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 time
Process 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 responses
Process:
Employee is invited in without notice
Ask 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 Practice
In 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 decisions
Chastising and telling off

15. Getting it Wrong! Breach of contract Unlawful deduction of wages
Unfair dismissal
Constructive dismissal
Discrimination claim?

16. Confidentiality
Explain to the employee/witnesses that they should keep the matter confidential
Witness 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 hearings
Allow the employee to agree the contents of the minutes
Ask the employee and officer to sign a copy of the final agreed minutes
No need to have a ‘word for word’ account – just an accurate reflection of the meeting
Is a recording really necessary?

21. Disciplinary Procedure
Four key areas
Disciplinary Issues
Invitation
Disciplinary Hearing (Decision making process)
Appeal

22. Key Issues
Is 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?

23. Disciplinary Issues Broken / flouted rules Misbehaviour
Persistent minor breaches
Gross misconduct

24. Inviting to Disciplinary Hearing
Disciplining Officer or Panel
Not previously involved
In writing
Right to be accompanied
Sufficient notice
Who disciplining officer is
Enclose all available evidence
State allegations clearly
State potential outcome in invite

25. Conducting the Hearing
Objective : to establish the truth
Introduction
Explain structure of the meeting
Roles
State clearly nature of complaint
Ensure matches allegations in invite letter
Obtain employees’ account and question it
Adjourn for decision

26. What if it does not go as expected?
Do not get involved in arguments
Stop meeting if employee provides adequate explanation or there is no real evidence
Adjourn briefly if employee becomes upset, agitated or angry to give them to time to regain their composure
Non 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 checked
Check informant’s motives
Consider possible explanations and investigate
Further 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 adviser
Procedural consistency needed:
sufficient investigation
following procedure
Within 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 warning
Dismissal
Other sanction
Disciplinary transfer
Demotion / loss of seniority
(must be allowed for in contract)

31. Next Steps
Outcome of hearing and disciplinary action should be provided in writing
The reasons for the decision should be stated
ACAS Code of Practice – state change in behaviour required
Right of appeal together with time limits and procedure should be confirmed
If 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 ignored
If payment in lieu, termination is immediate
Check complies with statutory / contractual notice periods

33. Dismissal Without Notice
‘Summary dismissal’ means dismissal without prior warning or notice
Only available if misconduct is gross!
An employee must know what may constitute gross misconduct
Gross 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 available
Read evidence beforehand
Unbiased manager or appointed Council Panel
What does ACAS say?

35. Appeal Meeting At the meeting Employee to state why they are appealing
Appeal officer/ Panel to consider carefully any new evidence
Employee allowed to comment on it
Further 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 writing
No further right of appeal (unless procedure allows for this!)