First Tuesday Q&A

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

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...

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

Two staff members complain separately about a work colleague but do not want to be identified. What do we do need to consider?

Posted in: First Tuesday Q&A NI on 04/06/2013 Where an employee wants to remain anonymous when raising complaints against another employee, the employer should first try to establish the reason for the request for anonymity. The reason for the request and the motives of the complainant need to be explored. In doing so the employer should carry...
This article is listed under the following topics:
Disciplinary and Grievance Issues

We are in the midst of a disciplinary investigation which involves CCTV footage of the employee. The employee has been given numerous opportunities to review the footage but has requested a copy of the DVD. Do we need to give him a copy?

Posted in: First Tuesday Q&A NI on 07/05/2013 As long as the employee has the opportunity to review the information being relied upon by the Company in relation to any potential disciplinary issues so as to enable him to respond fully to the allegations against him, he is not in any way being prejudiced within the disciplinary process. However...
This article is listed under the following topics:
Disciplinary and Grievance Issues

An employee fails to meet targets/deadlines – how can I proceed?

Posted in: First Tuesday Q&A NI on 02/04/2013 It is best practice where an employee is underperforming for the employer to work with the employee to encourage improvement. Concerns over performance should be dealt with fairly so that steps are taken to establish facts and give employees the opportunity to respond at a hearing before any formal...
This article is listed under the following topics:
Disciplinary and Grievance Issues

What can the Trade Union Representative say/not say during an investigation/hearing and can the chair say "no" to them?

Posted in: First Tuesday Q&A NI on 02/04/2013 The role of the companion (which includes a TU Representative) is limited. The companion is permitted to address the disciplinary hearing (including putting the employee's case, summing up, and responding on the employee's behalf to any view expressed at the hearing) and to confer with the employee...
This article is listed under the following topics:
Disciplinary and Grievance Issues Collective and Trade Union Issues

A Manager wishes to issue the following memo to all staff;

It has been decided that, in all disciplinary meetings all communications must be in English. It will not be permitted for anyone to communicate in any other language. This will ensure that everyone present knows what is being discussed.

Is there any way in which this can be justified without breaching race discrimination law?

Posted in: First Tuesday Q&A NI on 05/02/2013 While we are unaware of the background leading you to consider issuing this memo, you are likely to struggle justifying its position, particularly as, we assume, you have employees who are not fluent in English. A core principle of carrying out a fair disciplinary procedure is for employees to unde...

In what circumstances will an employment tribunal accept covert monitoring as evidence?

Posted in: First Tuesday Q&A NI on 02/10/2012 This question raises a number of issues and we are not told if the monitoring footage is within the workplace or outside. The Industrial Tribunal does not have formal rules of evidence about the admissibility of evidence but, if a party to the proceedings wishes to rely on recordings in support of ...