Can an employee ask for legal representation at a disciplinary meeting?
Unless their contract of employment provides otherwise, employees ordinarily have no right to legal representation at a disciplinary or appeal hearing. They do, however, have right to be accompanied by a fellow worker or a trade union representative.
A trade union representative for these purposes may either be:
- an official employed by a trade union
- a workplace trade union representative who has been certified in writing by that union as being competent to accompany the employee.
Employees will have a right to trade union representation whether or not their employer recognises a trade union. Further, the employee need not be a member of a trade union.
That said, there are limited occasions when it would be appropriate to allow an employee to be legally represented. This is most likely to arise where, if the employee is found guilty of the offence in question, it could result not only in them losing their job but also not being able to continue in their career. If faced with similar circumstances, we would advise that you contact your HR Rely advisor.
There are also some occasions when it might be appropriate to exercise your discretion to allow other parties to attend a disciplinary hearing, for example, if the employee is disabled, or is aged under 18.
There is nothing to stop you exercising your discretion to allow a legal representative to accompany an employee in circumstances other than those stated above. However, it is unlikely to work in the employer’s interest as it may make the process more adversarial and may prove disruptive to the disciplinary process. Additionally, allowing legal representation on an inconsistent or ad hoc basis may give rise to complaints of differential treatment. What may be more appropriate, if you do wish for an employee to have access to legal representation, is to allow them the opportunity to take adjournments during the disciplinary process to telephone their legal advisor as and when they wish.
For more information on an employee’s right to be accompanied please see our associated guide [Guidance on Right to be Accompanied for Employees and Companions].
My employee is not happy with our choice of disciplinary officer. Can we still proceed?
This will depend on the employee’s reasons for not being happy with the disciplinary officer. If the employee does not offer their reasoning, you should ask them to explain their concerns. It is likely that their concern will be that the disciplinary officer will not be impartial. If this is the case, you may wish to arrange for a different disciplinary officer to hear the proceedings. If the employee goes on to bring an employment tribunal claim, the tribunal will want to see that the disciplinary process was both reasonable and impartial.
If the employee refuses your next choice of disciplinary officer, you should again investigate the reasoning for this. If there is a clear conflict of interest, this disciplinary officer should also not be used. Conflict may arise if the chosen disciplinary officer has any previous involvement in the case, for example as a witness. However, where the employee simply does not like the chosen disciplinary officer, you should investigate whether the employee’s concern is reasonable and will impact upon the disciplinary process. If you feel that the employee’s refusal is unreasonable, you should write to him setting out your rationale and confirming your intention to proceed with the chosen disciplinary officer.
It is important to remember that you should not appoint a disciplinary officer who is, or may be, a witness or otherwise has been involved in the case. Further, unless you are able to demonstrate that it is not reasonably practicable to do so, you should avoid using a disciplinary officer who has also been involved in the investigation process.
I am investigating an employee for gross misconduct. There are many witnesses but none of them want to make a formal statement. Can I force them to give statements?
In reality you cannot force an employee to make a statement against another employee. Unless the employee concerned is a senior manager, you are unlikely to be able to establish an implied duty of good faith or fidelity which would compel the employee to cooperate.
You should therefore explore ways in which they may be comfortable in giving a statement. To do this, you must first investigate the reasoning behind their reluctance to make a statement. If it is due to a fear of reprisal from the accused, you could consider obtaining an anonymous statement.
Anonymous statements, while no match to a signed statement, are likely to be more beneficial to the investigation than no statement at all. When taking anonymous statements, you should closely scrutinise the reasoning for requested anonymity. If you feel that the unwillingness of the witness to assign their name to the statement casts doubts over the credibility of their evidence, you may be well advised to discount it from your investigations. Further, you must balance the competing needs of the witness’s desire for anonymity and the accused employee’s right to know the details of the case against him.
Where an anonymous statement is given, all efforts must be taken to ensure that the witness cannot be identified from the statement. This will involve removing their name from the statement and any references in the body of the statement which may lead to their identification. In many cases, however, the circumstances of the statement will enable the accused to identify the witness. This risk should be made clear to the employee while ensuring that all reasonable measures are taken to prevent any reprisal.
For more information see our Guide on use of anonymous statements.
Can I use Facebook comments as part of my disciplinary investigation?
The short answer is yes; however, you should be wary of how much reliance is placed on such comments.
You should access and print the comments promptly or ask the person notifying you of the comments to do so and provide you with a copy. This is important as comments placed on social networking sites are easy to remove and are then very difficult to trace.
When social media comments are used as evidence when investigating an allegation of misconduct, they should be presented to the employee along with any other evidence during the investigation meeting. The employee should be given the chance to explain the contents. The investigating/disciplinary officer should be aware that, unless the allegation/charge itself concerns remarks made on Facebook, limited weight should be given to such comments and, ideally, they should merely support a body of other evidence.
When basing any disciplinary decisions on Facebook comments you will need to consider and weigh up:
- The employee’s privacy settings, and how broadly the comments have/may have been read. Social networking sites such as Facebook are in the public domain; However, users are able to set their own privacy settings to prevent other users from seeing their comments. This is particularly relevant if there is any allegation that the employee has damaged the company’s reputation.
- The seriousness of the alleged misconduct.
- Where the disciplinary allegation/charge concerns the comments themselves, whether you have a clear social media policy in place which has been communicated to your employees? If not, it may be considered unreasonable to go on to discipline an employee when clear expectations have not been established.
An offensive Facebook comment made by one employee against another has been brought to my attention. Should I investigate this?
When it is the comments themselves that are of concern, you should carry out an initial investigation and, depending on the outcome, you may need to investigate the matter further.
As an employer you can be held vicariously liable for the discriminatory conduct of your employees carried out in the course of their employment. This liability may extend to comments made on social networking sites outside of the workplace. Therefore, if initial investigation indicates that the comments are made during the course of an employee’s employment, whether discriminatory or not, they should be investigated. Even if not made during the course of employment, inappropriate comments may contravene your organisation’s social media policy, if you have one, and should be investigated on that basis.
As an organisation, to avoid liability for discriminatory acts, you must show that you took all reasonably practicable steps to stop the act complained of from happening. This would include (but is not limited to) having a bullying and harassment policy and communicating this to all employees. It is also advisable to put in place a clear and transparent social media policy, setting out your rules on the use of social networking sites. If you do not have such a policy in place, please contact your HR Rely advisor. You may also wish to consider making it clear in the disciplinary procedure that any conduct outside work that has an adverse effect on an employee’s suitability to do the job or brings into question the relationship of trust and confidence may result in disciplinary action.
If a fellow worker or trade union representative is asked to accompany someone to a disciplinary or grievance hearing, what statutory rights do they have?
First of all, there is no obligation on the fellow worker or trade union representative to accompany a worker if they do not wish to do so, but they should not be prevented from doing so by the employer (provided that the request for them to act as companion) is reasonable.
The representative should be allowed reasonable time off from their usual duties to undertake their role as companion without loss of pay. This includes not only time off to attend the hearing but also to prepare for it. The representative is also protected from any detriment or dismissal for acting as a companion.
With the employee’s agreement, the representative may address the hearing, ask questions, and sum up the employee’s case. However, they are not entitled to answer questions on the employee’s behalf and may not prevent you as the employer from presenting your case. If a representative goes beyond their remit, the disciplinary officer should first of all remind them of their remit and warn them that if they continue to overstep this they will be asked to leave. If the meeting can no longer continue with that representative/companion, it should be adjourned so that the employee may source an alternative representative/companion if they so wish.
To ensure that the meeting is conducted in an orderly manner, it is always advisable to have an agenda for the meeting and to explain how the issues will be addressed and in what order. This will help the disciplining officer to maintain constructive discussion and make clear to the representative/companion and employee that they will have an opportunity to comment and ask questions.
One of my employees is being investigated for gross misconduct and has now filed a grievance of bullying by his manager. The employee admits to making covert recordings of conversations with his manager and has said he will use these as evidence to support his claims. The manager denies the allegations but says he can no longer work with the employee as he has lost trust in the relationship. What should we do now?
First of all, you should ask for a copy of the recordings as part of your investigation into the employee’s grievance. You need to suspend the disciplinary process whilst the grievance process takes its course, unless the two matters are directly linked in which case you can run the process concurrently. Your HR Rely advisor can help you decide on the best approach.
Whilst the manager may feel affronted by the fact that conversations have been recorded without his knowledge, if the evidence supports the employee’s claims it will be difficult for the manager to complain about this. The recordings would be admissible in a tribunal hearing unless the quality of the recordings is too poor to be of any use. Of course, if the employee declines to provide a copy, then you may wish to draw your own conclusions from this.
If you wish to discourage covert recording, it should be made clear in your company rules or handbook or in a specific communications policy that the company does not give permission for recording to take place without explicit consent of the participants. You should ensure that the consequences of doing so are made clear.
Assuming that the bullying allegations are not proven, the manager may have a case for not being able to trust the employee again and this may in itself be grounds for a subsequent fair dismissal on the basis of a breach of trust and confidence. However, you need to take account of the employee’s reasons for making the recordings in the first place. Had previous complaints been ignored? Had the employee been advised by a third party to make the recordings? If the employee’s actions have a reasonable basis, it may be unfair to dismiss purely because the manager is aggrieved.
If you do dismiss, you should also be mindful that the employee may claim that he has been dismissed for “whistleblowing” by making a complaint of bullying. Minimise this risk by ensuring that key documentation makes clear that dismissal is only due to the covert recordings and not because of the complaint itself.
We have an employee who has been asked to attend a disciplinary hearing for gross misconduct. He has asked if he can record the interview. We make no reference to this in our disciplinary procedure. What’s your view? In addition, we dismissed someone else some months ago (she is now out of time to bring a claim) and we found out that she had covertly recorded the interview at which she was dismissed. Could she have used the tape in proceedings?
The straightforward answer is that there is no entitlement or right to record an interview. Having said that, we would ask why would you wish to refuse? We recognise many employers feel uncomfortable with the employee walking away from a meeting with their own tape recording, but you need to ask yourself why it was that the employee felt it necessary to make the request in the first place. Some employees may be concerned that statements will be ‘twisted’ or taken out of context. Some may have little confidence in the person chairing the meeting or the individual taking the notes. Another potential issue is that the individual may suffer from a disability which makes it difficult for them to take their own notes or remember precisely what was said at the meeting. If comments have been taken down incorrectly then the individual would be in a difficult position to challenge the fact at, for example, a subsequent internal appeal or employment tribunal.
The next point to consider is whether or not you believe the manager chairing the meeting will act in an appropriate way: – will things “said or done” during the discussion reflect well or badly on that individual? If you consider it would be the latter and that is the reason for refusing to allow taping, then it follows that you should ask whether the manager is competent to run the meeting. Nothing should be said or done at that moment in time which the manager would not be able to justify at a later date.
If you do agree to the recording of a meeting, there are a number of safeguards you may wish to employ:
- ask for a copy of the recording
- have it transcribed
- ask the employee to confirm in writing that they will not disclose the tape to any third party, broadcast it or post it on social media. In effect, the employee should confirm that it will only be used for the purpose it was intended.
Finally, if a recording is made, be aware it can be used in future litigation.
With regard to covert recordings, you may be surprised to learn that tribunals will hear them if they are relevant to the case. Until recently the courts have only permitted covert recordings (which fulfil the above criteria) to be heard which concern the ‘open’ element of the hearing, i.e., when all parties are present. However, in the case of Punjab National Bank (International) Limited & Others v Gosain one of the managers considering the matter divulged to his colleagues (in the private deliberations section of the hearing) that the managing director had told him that the outcome should be Mr Gosain’s dismissal and that they should ignore part of his grievance. The EAT held that this was central to the Claimant’s case and the tribunal were entitled to consider the covert recording in light of this.
We have dismissed an employee for redundancy and elected to pay him in lieu of notice in accordance with our right to do so under the contract. Since dismissing him we have now discovered that he had committed an act of gross misconduct prior to the dismissal and so we have decided not to pay him in lieu of notice. Are we ok to do this?
Unless the contract allows you to not pay the employee in lieu in such circumstances, then no. You have dismissed the employee in accordance with a contractual provision and therefore the employee is entitled to be paid in lieu of notice. If you fail to pay the employee, he can sue you and claim the money as a debt.
If you have not yet paid the employee statutory redundancy pay, it may be that you can withhold this, but only if specific circumstances apply. You should speak to your HR Rely advisor if this is a route you want to follow.
You may decide to revisit your contractual wording for new employees and, as well as including a right for you, as the employer, to pay in lieu of notice, you may wish to include a right not to pay in lieu if misconduct is subsequently discovered. For example, such a clause might state “The company is entitled to withhold the payment in lieu of notice in the event that prior such payment being made it discovers that you had committed an act of gross misconduct whilst in employment”. Of course, if the employee challenges the non-payment of his lieu of notice monies, then you will need to be able to demonstrate the conduct was serious enough to warrant summary dismissal for gross misconduct with the evidence available to support that contention.
If the employee had not been paid in lieu of notice but was instead working his notice, this would have enabled you to take him through the usual disciplinary process and dismiss without notice, and without pay in lieu of notice, if an act of gross misconduct had been committed.