Employee Discipline in the workplace: Evaluation of Practice
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.
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.