Employment lawyer, Barry Stanton of Boyes Turner, explains how construction employers should navigate the disciplinary process.
A construction business may need to conduct disciplinary action in the event of employee misconduct, absence or poor performance.
Disciplinary procedures are a set way for an employer to deal with these issues and may include a disciplinary hearing.
An employee has reported concerns about inappropriate behaviour by another employee. What should I do?
It is important to remember that it is just an allegation. The starting point is to check the disciplinary policy to ensure that it is followed. Generally, it will be important to carry out an investigation and to gather the evidence.
Should the accused employee be suspended?
While it is often said that suspension is a neutral act it should not be a knee-jerk reaction to a situation. What purpose will the suspension serve? Are there alternatives to suspending the employee? If employees have been fighting or there are very serious allegations it may be reasonable to suspend. However, suspension should not be prolonged and should be for as short a period as possible. Does the employer have reasonable and proper cause to suspend? Suspension may be necessary to prevent evidence being tampered with or the employee disrupting the investigation.
What is the purpose of an investigation?
Investigations should be neutral. They are not designed to prove guilt or innocence, simply to gather the evidence. Any statements from witnesses should be signed. The investigation report is not required to attribute guilt or innocence but to determine whether the matter should be referred to a disciplinary hearing. Those responsible for the investigation should not be involved in any subsequent disciplinary process.
What happens if the matter is to proceed?
The employee should be invited in writing to attend a disciplinary hearing, which should explain the allegations they will have to address. All of the evidence gathered during the investigation should be provided to the employee. There should be a reasonable time to prepare, at least three working days, but ideally five working days. The employee should be advised of the right to be accompanied.
What is the right to be accompanied?
An employee is entitled to be accompanied by a workplace colleague or an accredited trade union representative who may make an opening and closing statement, ask questions and confer with the employee. They are not permitted to answer questions on the employee’s behalf.
What happens at the hearing?
The purpose of the hearing is to ask the employee questions about the incident and to test the evidence. It is usual for the manager hearing the disciplinary to be accompanied by a colleague from the HR team who can advise on process and take a note of the hearing. It is important to ensure that the employee and their companion have an opportunity to state the employee’s case fully
What happens at the end of the hearing?
It is good practice not to make an immediate decision but to take time to consider all of the evidence that has been heard. In misconduct cases a disciplinary officer has to decide whether they believe that the employee acted as alleged and whether there are reasonable grounds for believing that.
There are four outcomes: no sanction, first written warning, second written warning and dismissal.
A first act of misconduct, unless it is gross misconduct, will not result in dismissal. Typically, it will result in a first written warning which will remain live to be considered for a period of six months.
If an employee is to be dismissed it must be reasonable to dismiss the employee in those circumstances, but dismissal does not have to be the only sanction provided that a reasonable employer might have dismissed.
The decision should be that of the Disciplinary Officer (DO). The DO should not be influenced in the outcome by any other managers. That would make the dismissal unfair.
It is prudent to record why a particular decision was made in writing and for this to be set out in the decision letter. The DO should explain why the particular sanction was imposed and whether any mitigation was considered.
What if the employee is unhappy with the outcome?
The employee should be informed of their right to appeal. They will be required to make a written appeal with reasons within five working days. If an appeal is lodged, it should be heard by a more senior manager who has not previously been involved in the process. Even if an appeal is made out of time it would be prudent to hear it.
The appeal can either be a full-rehearing or can be limited to an appeal on the various points raised on appeal. The outcome of the appeal is final and there are no further rights of appeal.
Barry Stanton is partner and head of employment at Boyes Turner.
