Disciplinary Investigations and Hearings

When dealing with disciplinary cases, employers need to be aware of both the law on unfair dismissal and the Statutory Dispute Resolution Procedures contained in the Employment (Northern Ireland) Order 2003 for dismissing or taking disciplinary action against an employee.  The LRA Code of Practice on Disciplinary and Grievance Procedures sets out the steps that should be followed by the employee and the employer.

Industrial Tribunals take the Code into account when considering individual cases.

Unreasonable failure to follow the Code can increase compensation fines by up to 25%.

The Code of Practice states the following:

• Employers and employees should raise and deal with issues promptly
• Employers and employees should act consistently
• Employers should carry out any necessary investigations, to establish the facts of the case
• Employers should inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made
• Employers should allow employees to be accompanied at any formal disciplinary or grievance meeting
• Employers should allow an employee to appeal against any formal decision made

Suspensions

The purpose of suspension is to investigate and is not an assumption of guilt. Suspension should only be considered if there is a serious allegation of misconduct and:

• Working relationships have severely broken down
• The employee could tamper with evidence, influence witnesses and/or sway the investigation
• There is a risk to other employees, property or customers; or
• The employee is subject to criminal proceedings which may affect their ability to do their job Your disciplinary procedure should provide that the employer may suspend an employee on full pay pending completion of investigations.

Conducting a Disciplinary Investigation, Obtaining Statements

There is no legislation on who should carry out a disciplinary investigation; the decision should be made on the basis of ensuring a fair investigation and avoiding any potential conflict of interest. The LRA Code of Practice on disciplinary procedures states that different people should carry out the investigation and disciplinary hearing “where practicable”.

The person carrying out the investigation should not be involved in the matter in question in any way, for example as a witness. To avoid any suggestion of bias, the investigating officer should be someone who is not in the employee’s direct line of management, if this is practicable.

Any witness statements taken during the investigation need to be signed by both the individual providing the statement and the investigating officer.

Conducting a Disciplinary Hearing – The Hearing

Before any disciplinary hearing is convened, the employee should be given full written details of the allegations against him/her, including any evidence supplied by witnesses, and sufficient time to prepare for the hearing.

During the hearing, notes and records must be correct and filed properly.

The hearing should be adjourned for further consideration before reaching a decision. This may mean adjourning the meeting to another day if it transpires that further investigation is necessary.

Following the meeting, employers must confirm the decision in writing.