Latest from HRi

5 May 2021

HR’s Role In A Disciplinary Matter

  • HRi blog
  • , HRi highlights
  • , Latest news

Posted by: Alex Wilkinson

It is almost an urban myth that HR’s role is to discipline people. It really isn’t and rare is the occasion when this is actually the case. However, HR has a distinct role to play to guide the process and ensure it is done professionally.  Line Managers will have differing levels of confidence and may need additional support.

What HR is not there to do is act as a sounding board for disgruntled employees who are unhappy with their managers. This can result in blurred lines and HR being implicated in subsequent investigations. Be very clear about your role. Where you start and stop and what line managers do.

Familiarise yourself with any Disciplinary policy or procedure – this is your bible or equivalent

Ensure that all those involved are familiar with the disciplinary policy and understand their roles and responsibilities, including confidentiality around the case. Innocent until proven guilty! Take care not to express any personal views.

Make sure everyone is aware of any timeline imposed by the policy and procedure.  Be clear if you are taking on the role to manage compliance.

Follow ACAS’ guidelines in cases where the organisation does not have their own policy in place.

Understand what the allegation actually is

Your role is to distil all the noise into allegations on the ‘charge sheet’. This frames every action that is taken subsequently.  Sometimes this is hard to do which may be because it is not clear that a conduct breach has not been committed or there is a capability problem. In such circumstances when you deem disciplinary action is not appropriate, consider other actions like management guidance/mediation/training.

Check an appropriate investigation has been conducted/is being conducted

Think about who to lead the investigation and make sure they are clear on what is expected of them and any timelines.  The lead investigator can sometimes be an HR lead, but this works better if they are external. Line Managers can be great investigators or others in the organisation. Be clear on their role and the outcome required. Is there a case to answer or not? Tell employee about what is happening, if this is appropriate.

Consider supporting the investigation with forensic support (to obtain good evidence). An example might be in a situation where an employee has been accused of fraud and a forensic examination of taxi receipts shows they have been altered.

When is suspension appropriate?

Suspension should not be entered into without a good reason. But if the allegations against the employee involve gross misconduct, where if they were upheld, the employer would be entitled to dismiss the employee without notice, you can considered it.  You would also be justified in suspending the employee where there has been a breakdown in the employment relationship and the employer has lost trust in the employee.

Recheck your Disciplinary policy or procedure – that is your bible

Make sure you are not assuming anything.  Check all details. Ensure everyone has a copy.

Talk to union representative if you have that sort of relationship as it can help to build trust and confidence in the process.

Map out the process (if disciplinary action is appropriate) to call the employee to a hearing

Make sure you give correct notice – according to the company policy or Acas guidelines. It is important to disclose anything relevant to employee that may have come up in the investigation. Take care to redact documentation if necessary

At the meeting, be clear who is chairing meeting/making the decision from the outset. Make sure you be clear on your role;  to advise on company policy, take actions, keep a record etc

Ensure you brief anyone involved including the employee and their representative and consider whether any reasonable adjustments would help (location/representative.) It is a good idea to make sure you or someone else understand the culture/custom and practice

At the hearing

At the start, take responsibility for creating a record of the meeting which does not need to be verbatim or shared with the other side.  Ensure that you make any rules about recording the meeting clear, especially if a virtual venue. Also who is in attendance as employees can invite others to sit in the room without your knowledge.

Get the Chair to establish everyone’s role including your own.  You make also suggest that the meeting is halted if things are getting heated or you feel a break is needed. Your Chair may also request some guidance or feedback on how it is going. Remember that this is an internal management meeting and it is not a court of law.  You are entitled to make reasonable assumptions.

You make take the opportunity to consider whether a verdict can be given same day or more investigation is needed?

At the end of the meeting be clear with the employee and their representative about your expectations in terms of confidentiality especially on social media.

After the hearing

Once the hearing is over you need to adjourn to hear the Chair’s views on case and the proposed decision. You may challenge if appropriate (too harsh/too lenient – but it is not your decision!)

Agree the wording of an Outcome Letter to inform employee and the process to agree a record of the meeting which could be as simple as Chair signing your handwritten notes.

If a penalty is to be imposed, clarify how long this will remain on the employees file. If the employee is to be dismissed, manage this tightly and agree clear steps or schedule another meeting to discuss.

You should always think about the welfare of your employee but also any remaining staff. Agree any communications with the Chair regarding the departure of the employee together with any measures being put in place as a result of the incident.

It is important that you are clear on the appeal process and that the employee and their representative understand the purpose and process.

On occasions you might need to decide if a settlement is appropriate? Now or in the future? Discuss this internally with the Chair and Line Manager (if a different person).

What can go wrong?

Sometimes things don’t go according to plan but the key thing to do is deal with things as and when they come up, making detailed records as you make decisions. A few examples of what might go wrong include:

 

  • HR is implicated due to informal ‘off the record’ conversations – nothing is ever off the record!
  • Employee can go off sick with stress – get an OH or other medical opinion about continuing.
  • Encourage employee to go ahead or discuss a settlement with Line Manager
  • Employee can raise a grievance – this can run concurrently, or you can pause Disciplinary Hearing and hear that and revert.
  • Employee can commit additional acts of misconduct – social media etc
  • Employee can threaten ET action (don’t scare too easily but choose your battles)

And finally

Discipling employees is a management task that benefits from being done professionally and in a timely manner. It can form a core part of the employment relationship and need not be a limiting factor in future progress.  It is important that the employer is consistent and fair about whom the discipline and why. HR can really add value here by co-ordinating this.

Author: Ruth Cornish, HRi