A Solicitor’s Guide to Drafting Disciplinary Allegations - Q&A

Following a hugely successful presentation at this year’s Annual Review of Employment Law, Gareth Walls, Partner at A&L Goodbody, answers questions submitted on his topic, ‘A Solicitor’s Guide to Drafting Disciplinary Allegations’.

Q: Can an employer require an agreement to be signed by employee agreeing they will not make a Tribunal claim before the employer will release redundancy payment in compulsory redundancy situation?

This depends on the nature of the payment being made.  In a compulsory redundancy where only statutory redundancy is being paid, an employer cannot withhold a statutory payment unless and until an employee signs a document saying they will not issue any form of Tribunal claim. 

Where an employer is offering any enhancement from the statutory payment, they can ask that an employee sign an agreement that they will not litigate – and as long as that Agreement is a formal Compromise/Settlement Agreement or a Non-ET1 via the LRA, then the approach is not unlawful.  The employee is not bound to accept the enhanced payment and can hold out for the statutory sum and then litigate if they choose.

Q: Should the investigation and disciplinary meetings be separated and be completed by a different manager and HR advisor each time?

Ideally yes. In all but the smallest of organisations, the roles and processes should be delegated to different Managers to avoid challenges of bias etc.  There will not be separate HR Advisors – so one HR Advisor throughout is fine – as long as they confine their advice to process, not sanction.

Q: Who is appropriate to perform the role of a disciplinary manager impartially? Does the panel feel that this is best to remain within the scope of the business area who can provide an understanding into the general work process and procedures to allow for a deeper understanding of the potential misconduct or, remove it completely to others who will be fully impartial but have limited understanding of the work processes etc.?

I think it is clearly preferable if the investigator/disciplinary manager has a good working knowledge of the work processes/pressures/realities in play. If the organisation is so small that this is impracticable, or there is the potential for criticism re bias, then you have no choice but to involve a manager from another department.  Not ideal.

Q: What if additional issues /potential allegations come to light during an investigation - is it reasonable to expand the investigation so long as they employee is made aware and given an opportunity to respond to any new “allegations?”

Difficult one.  If the additional issues/potential allegations are connected to or similar with the initial issue/allegation or are based on identical facts in play, then it would be reasonable to extend the proceedings to deal with these 'new' issues.  That will require open written communication to the employee of what you are doing – and while you do not need them to expressly agree or sign up to the change – writing to them and setting out what additional issues you will be dealing with gives them the opportunity to raise any concerns they might have with this approach.

The Code of Practice and some 'best' practice guidelines would suggest (but not require) the employer to keep the processes distinct.  That is not terribly helpful as it means all parties are aware that once the current disciplinary process is finished, another is waiting in the wings. 

That said – where the new issues are completely unrelated to the initial disciplinary and involve different allegations (i.e. bullying in one and cash handling in the second) the issues and evidence are so far removed from one another that I would recommend two different processes.

Q: In correcting issues at appeal is the only option to find the decision unfair or can you put right the errors?

No – the Appeal may well accept that there were some procedural irregularities for example – but it is also open to the Appeal panel to conclude that the breach was inconsequential, easily remedied and will not have any impact on the initial decision taken.  They can 'fix' the remedy at the appeal stage – by re-interviewing a witness for example or allowing the employee to produce a piece of evidence for example – and then they can assess the value of that (if any).  They can then proceed with the Appeal and uphold the initial decision if they think it 'fair and reasonable' to do so.