Why can’t everyone just behave?! I hear you beleaguered practice managers cry whenever someone does something a bit naughty.
Managing misconduct feels like a minefield – but it doesn’t have to be!
Robyn Clark (aka JacksonR) and Susi O’Brien (HR Help advisor) hosted a lunchtime HR Clinic which focused on managing conduct and the disciplinary process.
Here is a summary of the questions we received, and the answers given.
If someone has passed their probation but committed gross misconduct shortly afterwards, do I still have to follow my disciplinary process?
It is something I would recommend. I know we often refer to employees with less than two years’ service as not having permanent employee rights and, yes, this does make it technically easier to dismiss people. But you need to be 100% confident that there is no chance the employee could hit you back with a discrimination claim. You must follow the ACAS Code of Practice with regard to disciplinaries to avoid any claim for unfair dismissal.
And don’t forget, your disciplinary process does not have to be onerous. If you are fairly confident it’s gross misconduct, I would assume you have strong evidence to back that up. So, investigate, get the employee to explain their side of it, and then arrange the outcome meeting. You may find that when faced with the process, the employee resigns before you have to take matters any further!
Do I have to interview the employee during the investigation?
Absolutely! You must give the employee the right to reply to whatever they are accused of. To carry out an investigation without doing so would be open to criticism and could be viewed as biased. You must always ask the employee involved for their response to the allegation.
When dealing with a member of staff who will not take responsibility for her actions and regularly denies all knowledge of issues caused by her, how do I handle this?
This sounds like fun! NOT! It’s very frustrating when people either lack insight into their behaviour or, even worse, are fully aware of it but take the route of complete denial.
The important thing here, though, is that it’s not about whether they are willing to take responsibility; it’s about how you can evidence that the issues exist and what their impact is. Remember that disciplinaries are not like a criminal court; you don’t have to prove things beyond reasonable doubt. You need to work on the balance of probability. If all the evidence points to the individual, if there’s a repeated pattern of behaviour, and if it’s not rectified once it’s pointed out, then you have enough evidence to proceed with a disciplinary.
You also need to ensure that she knows what the issues that she causes are. So, tell her! And then write down the discussion you have had. If the issues continue, she has no recourse to say she was not aware, because you have made her aware!
I have a bank receptionist who provides occasional cover. They seriously breached patient confidentiality last week. Do I have to organise a disciplinary?
Yes. They are working for you under a contract of employment and therefore have the same rights as other employed staff, regardless of their status as ‘bank’ – especially if they have more than two years’ service as they will still have permanent employee rights!
We have an employee who never signs into the H&S app at work, is constantly late and never does what they’re asked. Attendance is poor but they’re leaving in a month. Is it worth having the disciplinary now or should we just leave it?
That’s a really subjective question and only you can answer it!
Do you have the energy for it? It will take a lot of effort and energy. What would it achieve? They’re already going. I assume you have already written the reference for the new employer? Would it result in the employee going off sick for the rest of the notice period? Would you be better off putting them on gardening leave for the remainder of their notice?
It’s completely up to you, but my view would be that unless the problem is something that could pose a threat to patient or staff safety then it wouldn’t be worth the effort.
An employee wants to bring a family member to the disciplinary hearing. Do I have to let them?
Employees do have a statutory right to be accompanied to a disciplinary hearing, but this right extends only to a trade union representative. However, it is good practice to allow them to bring someone else – although I would recommend only allowing a colleague to come with them (or, depending on the circumstances, someone like a support worker). Bringing friends and family along is never a good idea in my opinion as it can make the meeting more emotionally charged and it can be more difficult to get the friend or relative to behave in accordance with what their role is meant to be – which is purely to support the employee, remind them of something they may want to say, or take notes. Supporters are not supposed to answer questions on behalf of the employee, or speak for them. And this is something friends or family often struggle with!
An employee went off sick with stress after finding out about the investigation starting. What do I do?
This is quite a common response, unfortunately, to people being informed that a disciplinary process is pending. When this happens, your sickness management procedure should take over. You should meet the staff member to explain that the disciplinary procedure is not going to go away, so the best thing to do is to get it over with. Your staff member may be willing to participate whilst they are off sick, so if you have their consent to do so, you can continue the investigation process and arrange their interview.
You can continue to investigate and interview other staff members/witnesses, etc. while the person is off, but obviously it’s difficult to finalise the process without interviewing the accused. So, it’s about being proactive in managing the absence. Should the employee refuse to participate, refer them to Occupational Health under your sickness policy, giving the background that there is an investigation pending. Ask Occupational Health to confirm whether the employee is able to participate in the investigation. It’s unlikely they will say no. And if they say yes, then explain to the employee that it needs to move ahead.
If they continue to refuse to participate, and there is no medical reason why they cannot participate, then you should go ahead with the information you have managed to obtain – and if that means they haven’t put their side across, then that’s their choice, and the outcome will be decided on the information you do have. So, it’s in their best interests to play ball!
An employee under investigation has submitted a grievance saying they’ve been bullied and racially harassed. What do I do?
I assume that this grievance is in relation to the fact that they are under investigation? If so, again this happens quite a lot. Quite often an employee’s first line of defence is attack – you’re coming for me, so I’m going to retaliate by accusing you (or someone else).
The first thing to do is to confirm to the employee that you take these accusations very seriously and you will investigate them. You would put your disciplinary investigation on hold while you investigate the grievance. In my experience, this doesn’t take long because there is often no evidence to back up the claim. So, meet the employee and hear what they have to say. If you conclude their grievance is not upheld, you can continue the disciplinary. If the grievance is upheld, you need to determine whether this impacts on your disciplinary process.
We are about to arrange a disciplinary hearing and the employee has requested copies of all emails about him written by managers in advance. Do we have to give them to him?
Yes, as this falls under a subject access request (SAR). But the same provisions around data apply, so any third-party information would need to be redacted, etc. This is also why I recommend being very mindful of what you put in writing – as it can be requested. Where possible, have face-to-face or telephone conversations!
An employee has been spoken to on several occasions about being rude to colleagues. Last week, we received a formal complaint from another staff member about further rudeness. It’s been going on so long and their position is becoming untenable in the team. Is this gross misconduct?
This is a tough one. Gross misconduct needs to be clearly defined in your conduct policy. Normally, you would think of gross misconduct as being things like fraud, acts of physical violence towards staff or patients, theft, serious data breaches and things like that. What you have here is repeated bad behaviour. But just because it’s been repeated doesn’t mean it “adds up” to gross misconduct.
Part of the problem here has been highlighted in the question: this has been “going on so long”. Why? Why hasn’t it been effectively dealt with before now? Repeated behaviours can be managed using your normal disciplinary process. Strike 1 – verbal warning. Strike 2 – first written warning. Strike 3 – final written warning. Strike 4 – dismissal. This is a much safer way of managing this sort of problem. One issue with allowing poor conduct to go unchecked is that you almost appear to accept it. So, if you dismissed this employee on this last instance of bad behaviour, they could claim unfair dismissal if they have never been formally reprimanded for it before.
What’s the best way to tell someone an allegation has been made against them?
It’s never a nice conversation to have, but best practice is to have the conversation! It can be tempting to just send them a letter inviting them to an investigation meeting, but this will do nothing to help your relationship with that employee.
Arrange to speak to them individually – although you can arrange for a colleague to join you if you feel you might need a witness – and explain what has been alleged calmly, in a sensitive manner. Empathise – the employee will no doubt be stressed, saddened and perhaps even angry. So, it’s really important that you remain calm. Explain what the process will be and who will be managing it. Remind them that they will be given an opportunity to put their side across and that no decisions have been made. Ask them if they will need any support during this time – it might be that they want to be referred to Occupational Health or you may have an employee support programme they can access. Reinforce the need for confidentiality around the process – not only on their part, but also that you will be upholding this too. Give them a copy of your disciplinary policy so they are aware of the process and what to expect. Ask if they have any questions and answer them as much as you can, but try not to get drawn into talking about the detail – remind them they will have the opportunity to put their side across in an investigation meeting.
We’re always told we have to investigate but what does that mean? Do I have to wander round playing detective?
Haha! Not far off! A basic investigation will simply be talking to the parties involved and obtaining their accounts of what has happened, or reviewing available evidence. So, for example, if an employee is accused of persistent lateness, you would investigate by reviewing their attendance records and then interviewing them to obtain their perspective on why they have been late.
For more complex allegations, it can mean that more investigation is needed. You may need to interview multiple witnesses. You may need to review different records or data, or audit systems. The more you investigate, the more questions you may need to answer – and you do need to answer them!
Much like a criminal investigation, good practice is to compile the results of your investigation into a report and present it to someone with the authority to determine what outcome is appropriate. A thorough investigation will make it easier to reach the right decision.
We have just completed an investigation into a breach of patient confidentiality, but it has come down to one person’s word against the other. I think the employee probably did it, but I’ve got no proof. Should we just leave it?
As I said before, it’s all about the balance of probability. But one word against another with no hard evidence is basically hearsay, so I wouldn’t recommend taking any formal action based on hearsay.
That doesn’t leave you powerless, however; these things are always an opportunity to reinforce what your expectation is. So, you could conclude your investigation by saying to the employee that you aren’t taking any formal action, but going forward you would not expect to see this behaviour repeated and you will be monitoring things!
Is it legitimate to ask what the accompanying person does for a job? If they’re a lawyer or a High Court judge, maybe not?
It shouldn’t make any difference if you’ve allowed it, as their role is limited to that of anyone accompanying an employee – as we’ve said, they can take notes on behalf of the employee, remind them of something they wanted to say, or ask questions on their behalf. They can’t answer direct questions on behalf of the employee. However, a lawyer representing the employee may feel they have a vested interest in throwing you off your guard, or ensuring the meeting does not go to plan. So it may be that you, as a manager, would feel more confident if you knew who was attending, and if you felt this was likely to be contentious or cause you to feel uncomfortable, you could revert back to the statutory right which is only a trade union rep or a colleague.
If redeployed to a lesser role, can pay be reduced as per the role they are deployed to?
This depends on what stage of the process you are referring to. If you are referring to being redeployed during the investigation, as an alternative to suspension, then no – as during the process itself, you haven’t determined that anyone is at fault. Remember that suspension is without prejudice, and would be at full pay, so it may be deemed prejudicial to redeploy someone temporarily and reduce their pay.
If you are referring to redeployment to a lesser role as an outcome following an investigation process, then you could seek to reduce pay if the role they were redeployed into was at a lower rate – but only if you have a specific right in your contracts to do so (which is unusual), or with the employee’s agreement. Getting an employee’s agreement to a pay cut is a rare thing. But if you already had sufficient evidence and grounds to dismiss and were simply offering the redeployed role as an alternative to dismissal, then in some circumstances you might be able to fairly reach agreement to the lowered pay. You would probably want to seek extra advice in such a situation as there’s a risk of a constructive dismissal claim.
A member of staff with protected characteristics is performing poorly – but this is not related to their disability. How do you keep the conversation on track as it is not linked to disability?
This question was not answered as it was not relevant to the topic, and the attendee was signposted to HR Help and the HR Masterclass module on performance management.
Our current employment contract gives us the option of having or not having the disciplinary and grievance processes applicable during probation. I have two questions: what do others do, and what are the advantages either way?
This is possible but not something that we would recommend. You have to be 100% confident that the employee isn’t able to claim any kind of discrimination for a protected characteristic. It’s also good practice to apply your policies to all staff from day one, although whatever process you go through for a staff member during probation may not need to be as lengthy or as thorough as the process for a longer-serving employee.
When the disciplinary outcome has expired, do you literally delete the record, or archive it?
Whilst it has expired, we recommend retaining a copy on the file in an archive folder. As mentioned earlier, if there is a pattern of behaviour, it may still be useful to be able to refer to this, even just in the context of “we’ve been here before”.
Once you have gone through DP and the result is dismissal, what information can you give to the rest of the team? We kept everything confidential, but Chinese whispers have caused more upset. We just want to be honest. We told the staff (60) that the person no longer worked at the practice.
Confidentiality is key, unfortunately, so our advice is to do what you’ve done – tell them the person is no longer involved and due to confidentiality, you are not able to discuss anything further. I would also highlight that gossip is not helpful to anyone and that as a practice you just want to move forward. Remind them that confidentiality extends to all of them as well!
How on earth do you address attitudinal issues if it becomes a “he said, she said” scenario?
It’s hard to manage hearsay so I’d be looking for evidence to back up any claims of misconduct against another staff member. When nothing is forthcoming, this, for me, is where mediation plays a part. Explain to both staff members that if there is no evidence and therefore a disciplinary process will not go ahead, mediation needs to occur to fix the relationship issue. Mediation can be really helpful in allowing people to air their grievances in a structured environment, with the aim of being able to move forward and reach a mutual agreement on how to do this. Obviously, both parties need to agree, and if this doesn’t occur and the relationship issues spill out into the wider working environment, it may be that both employees find themselves on the wrong end of a disciplinary conversation with their manager!
Links to useful documents
Disciplinary policy and procedure [PLUS]
Disciplinary templates [PLUS]
Grievance policy and procedure [PLUS]
Grievance templates [PLUS]
Sickness absence management policy [PLUS]
Our HR Masterclass includes a module covering all aspects of conduct and disciplinaries, as well as modules on other important topics, including recruitment, managing long-term absence, performance management and managing short-term absence.
The HR Masterclass is an online course delivered in the HUB. For existing Practice Index Learning subscribers, this module is now available in your course list.
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We have another HR clinic coming up soon:
Managing persistent short-term absence – Thursday 24th November at 12.30pm
We are looking to host HR clinics on a number of topics. Do let us know in the comments what other topics you’d like to see covered in future sessions.
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