Em­ployee Dis­ci­pline in the work­place: Eval­u­a­tion of Prac­tice

The HR Digest - - Content Features -

pic­ture, then an in­ves­ti­ga­tion may be nec­es­sary if for­mal action is needed, such as a writ­ten warn­ing, much less a ver­bal one.

Sit­u­a­tions that will of­ten re­quire an in­ves­ti­ga­tion in­clude:

Re­ceiv­ing a griev­ance from an em­ployee

Al­le­ga­tions of work­place ha­rass­ment or bul­ly­ing

Dis­ci­plinary mat­ters against an em­ployee

Con­cerns over com­pany poli­cies and pro­ce­dures.

In­ves­ti­ga­tions are a vital part of han­dling cer­tain con­flicts within an or­ga­ni­za­tion. In dis­ci­plinary in­ves­ti­ga­tions a flawed or in­com­plete in­ves­ti­ga­tion can un­der­mine the dis­ci­plinary process. This could fur­ther leave em­ploy­ers vul­ner­a­ble to claims for un­fair dis­missal.

If an em­ployer dis­misses an em­ployee they must be able to show that they had: a) rea­son­able grounds for this, b) gen­uinely be­lieved that mis­con­duct oc­curred, and c) ar­rived at this be­lief af­ter a rea­son­able in­ves­ti­ga­tion.

Once should be able to show that they came to their de­ci­sion based on a re­sult of a thor­ough and fair in­ves­ti­ga­tion be­fore the dis­missal of any em­ployee.

In­ves­ti­ga­tions are vital, when a griev­ance has been raised. Where the griev­ance is not de­fended, the ev­i­dence col­lected dur­ing the in­ves­ti­ga­tion process can be used to ex­plain the mo­tives be­hind this and show an em­ployee that their griev­ance was taken very se­ri­ously.

Best Prac­tices

An HR man­ager/in­ves­ti­ga­tor should be fair and ob­jec­tive when car­ry­ing out an in­ves­ti­ga­tion. They must look for ev­i­dence that sup­ports and un­der­mines the al­le­ga­tions. An in­ves­ti­ga­tor’s job is to -

be avail­able dur­ing the in­ves­ti­ga­tion

not per­son­ally get in­volved in the mat­ter

not get in­volved in any con­se­quent de­ci­sion mak­ing

be trained in how to con­duct an in­ves­ti­ga­tion.

Sim­i­larly, when con­duct­ing an in­ves­ti­ga­tion, an in­ves­ti­ga­tor should:

con­sider what the is­sues are un­der in­ves­ti­ga­tion

plan how the in­ves­ti­ga­tion will be con­ducted

de­cide in what or­der ev­i­dence will be col­lected

col­lect all rel­e­vant ev­i­dence and con­sider what the ev­i­dence shows

re­port their find­ings.

An in­ves­ti­ga­tor should be given all the de­tails that give in­for­ma­tion on what they are ex­pected to in­ves­ti­gate. The in­ves­ti­ga­tion process should aim to es­tab­lish the facts of the con­flict by col­lect­ing im­por­tant ev­i­dence, such as wit­ness state­ments, phys­i­cal ev­i­dence, writ­ten doc­u­ments and draw­ing a con­clu­sion.

How much in­ves­ti­ga­tion is re­quired and how it should be ap­proached to re­solve will vary from mat­ter to mat­ter. A com­pli­cated mat­ter may take sev­eral weeks to con­duct prop­erly. A rel­a­tively sim­ple mat­ter may only re­quire a small amount of in­ves­ti­ga­tion for it to be rea­son­able. Any rea­son­able in­ves­ti­ga­tion process is vital for a fair dis­ci­plinary pro­ce­dure.

One needs to take time to es­tab­lish facts when draft­ing a dis­ci­plinary al­le­ga­tion so that the par­ties in­volved are dealt with fairly. Do­ing so could help save com­pa­nies from un­fair dis­missal claims. Here are some key steps in car­ry­ing out a fair in­ves­ti­ga­tion process:

You’re Fired: Com­mon Dis­ci­plinary Mis­takes By Em­ploy­ers

Not fol­low­ing the dis­ci­plinary pol­icy at all Not warn­ing the em­ployee of the pos­si­ble con­se­quences of any dis­ci­plinary process be­fore the dis­ci­plinary meet­ing Not get­ting out the na­ture of al­le­ga­tions clearly to the em­ployee sub­ject to the dis­ci­plinary process Not pro­vid­ing the em­ployee rel­e­vant ev­i­dence ac­cu­mu­lated against them Not giv­ing ‘warn­ings’ when they are ap­pro­pri­ate

Most cases should to be man­aged in a mat­ter of weeks and un­ex­plained de­fer­ments in the dis­ci­plinary pro­ce­dures will be crit­i­cized by the Tri­bunal. Fur­ther­more, dif­fi­cult cases, such as a fraud al­le­ga­tion or a crim­i­nal of­fence, take much longer.

One of the most com­mon fail­ing found in such cases is that the same in­di­vid­ual is also re­spon­si­ble for the dis­ci­plinary pro­ce­dure. Ide­ally, dif­fer­ent peo­ple should carry out the in­ves­ti­ga­tion, the dis­ci­plinary hear­ing and ap­peal process. In most cases though, this isn’t prac­ti­ca­ble, es­pe­cially for small com­pa­nies with very lit­tle man­power.

There are been sev­eral cases where the Tri­bunal looked at the ap­po­site­ness of us­ing ex­ter­nal HR Con­sul­tants dur­ing the dis­ci­plinary process where the Em­ployer is small in size and does not have suf­fi­cient staff to hear the dis­ci­plinary/ap­peal/con­duct the in­ves­ti­ga­tion/needs pro­fes­sional ad­vice etc., and Tri­bunals take the gen­eral view this is ac­cept­able as long as it is made clear who makes the fi­nal de­ci­sion to dis­miss and the de­ci­sions are made ap­pro­pri­ately.

There have been sev­eral cases in the U.S. his­tory where the Tri­bunal also looked at the lib­erty of hir­ing ex­ter­nal HR con­sul­tant dur­ing the dis­ci­plinary pro­ce­dure where the em­ployer is small in size and does not have ad­e­quate staff to hear the dis­ci­plinary/ claim/di­rect the process/needs pro­fes­sional coun­sel and so forth. In such cases, the Tri­bunals take the gen­eral view that this is ac­cept­able as long as the of­fi­cial who makes the fi­nal de­ci­sion to dis­miss, made it ap­pro­pri­ately.

Most em­ploy­ers have an alien­at­ing ten­dency to­wards em­ployee dis­ci­pline and of­ten end up with dif­fer­ent cop­ing mech­a­nisms. The vari­a­tions in the dis­ci­pline pro­cesses

within the or­ga­ni­za­tion could be due to im­proper de­sign of the dis­ci­plinary process. Lack of dis­ci­pline can cause losses in over­all pro­duc­tiv­ity and bring in con­flicts, which will have a se­ri­ous reper­cus­sions on the or­ga­ni­za­tion’s per­for­mance. It is im­por­tant to have a proper dis­ci­plinary process in place that will fa­cil­i­tate the over­all per­for­mance of the or­ga­ni­za­tion.

Search for his­toric em­ployee com­plaints, exit in­ter­views, med­i­cal records, and line­m­an­age­ment file notes, past ap­praisal records, ab­sence sta­tis­tics, or any other doc­u­men­ta­tion that is rel­e­vant to the case. The most im­por­tant thing here is to en­sure that the process is struc­tured, open and trans­par­ent. Try to give all wit­nesses/in­ter­vie­wees the same op­por­tu­nity to dis­cuss their per­sonal role in mat­ters – and any im­pact the case has had on them per­son­ally.

Treat ev­ery­one with re­spect and look out for stress lev­els. Be pre­pared to ad­journ a meet­ing if an in­ter­vie­wee is vis­i­bly dis­tressed or un­able to con­tinue. Fol­low up by clar­i­fy­ing any sit­u­a­tion that comes to light through the process. It is not un­usual for an in­ves­ti­ga­tion process to un­cover im­por­tant facts which were ini­tially be­lieved to be ir­rel­e­vant. Fur­ther ex­plo­ration and or in­ter­view­ing may be nec­es­sary. Do not form opin­ions un­til all wit­ness state­ments are ap­proved and any/all ev­i­dence is ex­am­ined and in­ves­ti­gated.

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