16th September 2015

The Employer's 5-A-Side Disciplinary Dream Team

Ever found yourself out of position on the football pitch causing difficulties to your team?  Frequently players will also find themselves offside in not knowing what their role involves during a disciplinary hearing. We have selected our 5-aside ‘Dream Team’ likely to stave off any threat from an employment tribunal. As long as the key players know their roles, any claims of unfair dismissal should be kept at bay.

The Disciplinary Officer (‘The Striker/Penalty Taker’)
The Disciplinary Officer in a disciplinary hearing is the focal point of the attack. They are the one with the responsibility of making the final decision. Although the rest of the team will support to help making that decision as easy as possible, the onus is on them to take that final shot. It is their role to weigh up the evidence that has been presented to them and to decide on the appropriate sanction if a sanction is required. As long as the Disciplinary Officer can provide reasons supporting their decision and ensure a sufficient investigation has been carried out, they will significantly reduce the chances of an unfair dismissal in the employment tribunal. The Disciplinary Officer should be impartial and should not be involved in proceedings prior to the hearing.

The Investigating Officer (‘The Winger’) 
It is the role of the Investigating Officer to investigate the alleged conduct of an employee. They are the wingers of the ‘Dream Team’. It is their role to assist and supply the Disciplinary Officer with as much information as possible to allow them to make the final decision. This assists in making the final decision a lot easier for the Disciplinary Officer. It is important for the Investigating Officer to consider as many possibilities as possible and to consider the employee’s version of events. It is also important for the Investigating Officer to remain impartial. After the Investigating Officer has played his pass and presented his information to the Disciplinary Officer, they should play no further part in the game unless further investigation/assistance is required. A poor delivery on the investigation is unlikely to lead to the goal of a fair dismissal.

HR (‘The Midfield General’)
It is the role of HR to provide support to both the Investigating Officer and the Disciplinary Officer as and when required. There was a case this week emphasising that a Disciplinary Officer or an Investigatory Officer is entitled to seek guidance from HR, however the scope of this assistance is limited. The advice HR can provide is limited to matters of law and procedure and to ensuring that all necessary matters have been addressed and achieve clarity. HR are not to influence the Disciplinary Officer’s decision in any way. They are to have no influence on the final shot. It is recommended in the case this week that file notes record any advice given to Disciplinary Officers and prove that no undue influence was placed on the Disciplinary Officer. HR also provide work for the defence, helping prevent attacks by employees by ensuring policies and contracts are up to date. They are the Midfield Generals of the disciplinary proceedings.

The Note Taker: (‘The Defender’)                       
Employees have the right to be accompanied at a disciplinary hearing by a co-worker or a trade union representative. Employers will often want some extra support for their defence. In order to avoid the Disciplinary Officer being outnumbered at the disciplinary hearing, it is sensible for them to be accompanied by a Note Taker. The Note Taker’s role is to simply take notes and they should not be involved in the disciplining of the employee. A Note Taker will often give evidence about the content of discussions during the disciplinary hearing if the facts are in dispute at a later stage. They are generally there to defend the Disciplinary Officer.

Appeal Officer (‘The Goalkeeper’)                       
Employees have the right to appeal the outcome of a disciplinary hearing. The person hearing an appeal, the Appeal Officer, can be seen as ‘the Goalkeeper’ of the disciplinary proceedings. They are the last resort once all of the other defences have been exhausted. They can have a very important role to play and can be used to tidy up any mishaps in the performance of the rest of the team. They should play no part in proceedings prior to the appeal and where possible should be impartial. Ideally the Appeal Officer should be more senior than the Disciplinary Officer to avoid any accusations of undue influence or a reluctance to undermine their superior’s decision. It is the role of the Appeal Officer to consider any further arguments the employee has raised and whether any further investigation is required. Again if the Appeal Officer can show clearly the reasons supporting their decision, and that they have considered the points raised by the employee, the chances of an unfair dismissal will be significantly reduced.

So in order to avoid a red card – or worse still, relegation – make sure your players all know their roles within the Disciplinary Dream Team. However if you do find yourself being taken into the next round by an employee, you are best loaning in some support from an employment lawyer!

Andrew Wallace
Solicitor – Blackadders Employment Team
@EmpLawyerAndy

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