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First Tuesday Q&A

The claimant was dismissed by reason of gross misconduct and in particular.

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Is it necessary to disclose witness statements taken during misconduct/ bullying investigations (as opposed to post investigation if disciplinary arises)?

Posted in: First Tuesday Q&A NI on 04/02/2014 The purpose of conducting an investigation is purely to inform a decision making process and it should be a fact-finding process. The investigation should help demonstrate how fair and reasonable the employer has been with regard to any decision that is subsequently taken to proceed to disciplinary...
This article is listed under the following topics:
Disciplinary and Grievance Issues

In a small organisation with few managers, what is the expectation about where appeals against a dismissal would go?

Posted in: First Tuesday Q&A NI on 07/01/2014 Paragraph 48 of the Labour Relations Agency Code of Practice advises the following:- ‘A more senior manager not previously involved with the case should hear the appeal. Where a person at the most senior management level has already been involved with the case and there is a manager of the same st...
This article is listed under the following topics:
Disciplinary and Grievance Issues

What can an employer do if an employee goes out sick with stress during a disciplinary process?

Posted in: First Tuesday Q&A NI on 07/01/2014 Sickness absence during a disciplinary process on grounds of stress or anxiety is not uncommon, however, an employee who is unfit to work may nevertheless still be fit to attend a disciplinary hearing if, for example, the stress is related to the employee’s day to day work, or indeed, if other arra...
This article is listed under the following topics:
Sickness and Absence Disciplinary and Grievance Issues

An employee has a Facebook profile which is public for all to see. The employee adds the company where they work on their profile page. They then make very serious racist comments. The posts are brought to the company’s attention. What action is required? 

Posted in: First Tuesday Q&A NI on 03/12/2013 It is possible for employers to take action against employees who make inappropriate or derogatory comments about fellow employees or their employer on social media sites or where they bring the employer’s reputation into disrepute as the case may here. This is particularly the case where employee ...
This article is listed under the following topics:
Disciplinary and Grievance Issues Discrimination and Equality Policies and Procedures

Is it acceptable to allow a Union Rep to speak on an employee’s behalf in a disciplinary hearing, when I would prefer to hear directly from the employee?

Posted in: First Tuesday Q&A NI on 01/10/2013 The role of the union representative or companion at a disciplinary hearing is often misunderstood. The LRA Code does say that it is good practice to allow the companion to participate as fully as possible in the hearing. However, despite common belief, companions do not have the right to answer qu...
This article is listed under the following topics:
Disciplinary and Grievance Issues Collective and Trade Union Issues

When, if ever, it is appropriate for an employer to argue frustration of contract? For example if an employee is given a prison sentence of 3 or more years for an offence that is no way connected with their employment can an employer claim frustration rather than have to go through the statutory dismissal procedure using "some other substantial reason" as the potential reason for dismissal?

Posted in: First Tuesday Q&A NI on 01/10/2013 Case law confirms that a custodial sentence imposed on an employee is capable of frustrating the contract of employment but whether it does or not depends on the circumstances of the case with the length of the term to be served by the employee being a significant factor to be considered. Tribunals...
This article is listed under the following topics:
Unfair Dismissal Disciplinary and Grievance Issues Contracts of Employment

If an employee has been called to a disciplinary meeting, can he/she bring a Trade Union representative or solicitor with them to this meeting?

Posted in: First Tuesday Q&A NI on 03/09/2013 Employees have a right to be accompanied at a disciplinary hearing by a trade union representative or a fellow worker. There is no general right under UK law for an employee to have a qualified legal representative at a disciplinary hearing, however, some employees (for example, NHS hospital doctor...
This article is listed under the following topics:
Disciplinary and Grievance Issues Collective and Trade Union Issues

What is the current state of law in relation to disability absences being taken into account by an employer for disciplinary action?

Posted in: First Tuesday Q&A NI on 06/08/2013 Disciplinary action against an employee for absences that are a consequence of a disability could constitute discrimination arising from disability under the Disability Discrimination Act 1995. If persistent or long-term absence affects the employee’s ability to carry out the job, you should addres...
This article is listed under the following topics:
Sickness and Absence Disciplinary and Grievance Issues Discrimination and Equality

I have a query regarding the anonymity of complainants/witnesses, particularly relating to disciplinary cases.

The original question related to two staff members complaining separately about a work colleague but neither of them wanted to be identified. In summary the answer outlined that the employer should investigate the reasons for the anonymity request and balance the complainant’s right of confidentiality with the accused right to a fair hearing.

The answer provided was very helpful, although it was silent on the issue of the Data Protection Act and personal data. Statements given by complainants or witnesses will contain information about the behaviour or actions of another employee and I wondered if that employee has particular rights under DPA (e.g. subject access) to see what has been written about him/her, or does the data belong to the witness/complainant or is there a balance to be considered?

I appreciate that all material may be required to be made available at Tribunal, but I am thinking here more of the internal disciplinary process.

Posted in: First Tuesday Q&A NI on 02/07/2013 Ideally all witness statements and other documents to be relied on should be made available to the employee before a disciplinary hearing. This helps to give the employee a full picture of the nature of the allegations and the case they have to meet. Obviously, if the employer has given a promise o...
This article is listed under the following topics:
Disciplinary and Grievance Issues Data Protection and Freedom of Information Act Policies and Procedures

I have a query regarding point 4 from last month regarding the signing of disciplinary notes; is this the investigatory notes or the disciplinary notes?

Posted in: First Tuesday Q&A NI on 04/06/2013 By way of reminder, the relevant question and response from last month’s email are as follows: Question: Is it good practice to get the person you are speaking to during a disciplinary meeting to sign the notes you have taken? Answer: If possible, yes. Many employers ensure that employees sign manu...
This article is listed under the following topics:
Disciplinary and Grievance Issues