The way in which employers handle potential disciplinary situations may have to change, given the revision of the ACAS code of practice on disciplinary and grievance procedures. Consider a typical employment situation:
One day at work you find an anonymous note claiming that a senior manager is fiddling her expenses. You invite the manager in question to an investigatory meeting since you believe this has to be looked into, but she refuses to answer any questions without the presence of another colleague.
How should you respond?
Law: According to the ACAS code, employers should carry out necessary investigations to establish the facts “without unreasonable delay”. In some cases, it says that a full investigation requires an investigatory meeting with an employee who could face disciplinary action. Employers should deal with the employee fairly and reasonably, and look for evidence that supports their case.
Strategy: In this case, the allegation would be of gross misconduct if it turned out to be true, so it should be treated seriously and promptly despite being anonymous. In most situations like this, an investigation needs to take place to decide whether disciplinary action is necessary or not, but it is likely to be impossible to decide about further action without speaking to the employee.
Employers must judge whether or not to hear the employee’s case immediately or whether to investigate the merit of the allegation separately. In the latter case, checking the manager’s expenses to see if they are out of line with other managers of her level is a good place to start. Speaking to her before doing anything else in this case would be seen by a tribunal as in accordance with the ACAS code for treating her in a reasonable manner; she would probably be aggravated if she found that her expenses had been completely reviewed before she was notified, especially since the tip-off was anonymous and may have been in ill faith.
How do you arrange the investigatory meeting?
Law: The employer should give the employee notice of any investigatory meeting so that there is time to prepare for it, although it does not say how much notice should be given.
Strategy: You must decide how much notice it would be appropriate to give. Many employers fear that too much notice of both the meeting and its contents gives the opportunity for evidence to be tampered with. In most cases an hour or two’s notice is probably sufficient. This helps the employer balance the need to progress the investigation without delay, with the need to treat the employee fairly.
How do you deal with the employee’s want for accompaniment?
Law: Employees have no right to be accompanied to an investigatory meeting, but an employer may allow it under their or the organisation's own procedure.
Strategy: Examine the organisation’s internal disciplinary procedures to see if an employee has the right to be accompanied. If she doesn’t then her request can be refused, and her response to that can help decide whether there is need for further disciplinary action or not.
Some employers are considering amending their procedures to allow employees accompaniment in investigatory meetings. But they should consider what delay this might cause in cases where the chosen companion is not available for some time.