Employment Law: Three Common HR Errors in Disciplinaries Including Governor Support

This summary is based on Judicium’s Employment Law: Three Common HR Errors in a Disciplinary Process Including Governor Support ‘Sofa Session’ from the 8th of February, with our Resident expert Jenny Salero LLB (Hons), LPC.  This session was centred around the three common mistakes made regarding the disciplinary process: whether to record or not record meetings, who can and who cannot be allowed into the meetings, and how to avoid common process derailing techniques.

Polls

At Judicium, our Employment Law consultants say the disciplinary process is one of the top concerns or issues they see coming from schools, second only to sickness absence.

The Process 

There are three key stages in the disciplinary process: the investigation, the hearing and an appeal. It’s important to think ahead as to which individuals your policy recommends using for each stage as well as factoring in if those individuals are involved in any other process with that employee, e.g. sickness, absence, formal grievance, etc. There is no legal reason why the SLT/Governing Body members involved in other processes cannot be utilised, as they are separate. However, trade unions often object to this thus pre-planning is essential.

1. Refusing to Allow Employees to Record the Hearing 

It’s becoming more and more common these days for an employee to start a disciplinary hearing, or indeed any HR hearing, by getting out their smart phone and requesting to record it.

The general response is usually to say NO. There are lots of reasons given for this but what it always boils down to is… deniability.

The employer wants control over the written account of the meeting to finesse any questions that may have been ambiguous at the time, to take out anything that was inappropriate, or to generally ensure the tone of the meeting was as desired by HR. Overall, the employer wants to make sure they are controlling the record of that meeting.

The problem is, all Employment Tribunal Judges know this and therefore they may take a suspicious view of employers who refuse any request to record a meeting, especially without a good reason for refusal.

What if someone covertly records the meeting?

This is another concern to be mindful of. Case law states that covert recordings are admissible as evidence, as long as the recording only recorded aspects of the meeting that the employee was personally present for.

This means that the employee cannot leave their phone hidden in the room when they leave to record the deliberations. NB: they can have their phone recording without you knowing during the meeting.

While it could be argued that this conduct damages the trust and confidence you have in your employee, the counter concern is:

If the subsequent minutes do not match that recording, your credibility is lost, and the employee can turn the issue of trust and confidence against you.

Is there anything we can do to protect ourselves from the employee publishing the recording on social media?

If an employee asks to record the meeting, you can take the follow actions:

• Ask them to assign copyright to you.
• Ask them to sign a form that guarantees they will not post it on social media.
• Ask that they sign an enforceable document which enables you to force them to take the subsequent posting down and may involve a trip to court for an injunction.

2. Refusing to Allow a Family to Accompany Your Employee - What the Law States:

The Employment Rights Act 1999 gives employees a right to be accompanied by a trade union official or a workplace colleague at a disciplinary hearing or a grievance hearing. That is the scope of statutory rights.

Read Your Policy - Unless your policy states otherwise, your employees are not entitled to be accompanied at investigation meetings, sickness absence meetings and/or capability hearings.

Some companies take the view that no one apart from a trade union representative or workplace colleagues can attend those meetings; however, the law previously stated sets out the minimum right, not the total right.

This must be considered in conjunction with S.98 (4) of the Employment Rights Act 1996, which states when considering the fairness of any dismissal, the employer is expected to act reasonably, which may include allowing someone else into the room who is not a trade union representative or a workplace colleague.

We also must be mindful of the Equality Act 2010 if our employee suffers from a disability, as it may be considered a reasonable adjustment to let someone other than a trade union representative or workplace colleague accompany the employee.

In most situations,allowing the employee to bring whomever they want to a meeting provides these key benefits.

• The person the employee wants to bring, for example their mum, will be their most trusted advisor. If they are not allowed in the meeting, they will only have your employees’ account of that meeting. Based on that account, they are the person most likely to provide your employee with emotional and/or financial support to challenge any decision made at that meeting. However, if they attend the meeting and saw first-hand the weight of evidence against the employee, they may not be so eager to encourage tribunal litigation.
• You may also find that they are a calming presence in the room. While your employee may lose control of their emotions and stop thinking or acting rationally, their loved one may be more in control. They could see how your employee is perhaps making things worse for themselves and may seek to calm the situation.

What if the person attending the meeting with the employee starts to act inappropriately?

If anyone accompanying your employee begins acting inappropriately during the meeting, including trade union representatives or workplace colleagues, you can issue an initial warning to them that their behaviour is unacceptable.

Perhaps suggest a short break for tempers to cool down. If their conduct does not improve, you can evict them from the meeting. 

The only exception to this point is lawyers. We do not recommend allowing lawyers to attend any meetings. Lawyers can disrupt the proceedings, seek to tie you up in knots and do all they can to strengthen their client’s position.

How do we know if the person is a lawyer?

Both the law society website and the Bar Council websites have search functions, enabling you to search for solicitors or barristers by name.

3. Pausing a Disciplinary Process upon Receipt of GP note citing work related stress/or anxiety or a formal grievance

In our experience, it is very common for an employee who is informed of disciplinary concerns to react by submitting a GP note citing stress. We have found the best way to deal with this is by taking a robust stance.

The employee may have a GP certificate stating they are unfit for work – but remember they are not being asked to return to work. They are being asked to attend a meeting.

In this situation, the best thing to do is to refer them to Occupational Health. Ask OH whether that person is fit to attend a meeting to respond to allegations of misconduct. The majority of OH doctors will say yes.

Why? Because doctors (and most Employment Tribunal Judges) know that best way to remove symptoms of stress is to remove the cause of that stress. If the reason your employee is stressed is the ongoing disciplinary process that is currently hanging over their head, then the best way of removing the stress is to deal with that disciplinary process.

NB: An OH report supersedes GP notes and letters. However, you may also want to note that a psychiatrist’s opinion will overrule the OH’s report. If your employee submits a letter from a psychiatrist, we strongly recommend you seek HR guidance on the next steps.

As psychiatrist letters are rare, in most instances, once you’ve received the OH report, you can notify your employee of the date of the disciplinary meeting.

Always offer adjustments to facilitate their attendance, such as a neutral venue for that meeting or offer to hold it via telephone or video. You can also invite them to submit written responses instead of attending the meeting in person.

What if they continue to refuse to attend or simply fail to turn up?

In that instance, you can write to them again with a new date and time for the meeting, repeating the previous offers of a neutral venue, a telephone or video hearing, or written responses.

State clearly that if they don’t engage in the second meeting without a good reason, a decision will be made in their absence.

This provides evidence to an Employment Tribunal that your approach was reasonable. And most Judges will start from an assumption that if someone is off sick immediately following misconduct concerns arising, it’s because they’re trying to avoid the disciplinary.

In the case of a formal grievance being raised during the disciplinary process, if the grievance is unrelated, they can be treated as two completely separate issues and carry on concurrently.

If the grievance is linked to the disciplinary process, it may be worth pausing the disciplinary to process the grievance quickly in order to move forward with the disciplinary.

Always remember - keep the momentum and press ahead to the end of the disciplinary process.

Top Tips for Governors 

1. Ensure your decision is not communicated during the meeting or directly after.
   • Whether it’s an initial hearing, or an appeal, take time to deliberate.
   • Give the employee confidence that you have considered and taken into account all of the information provided.
   • The outcome shouldn’t be seen as predetermined.
2. Ensure deliberations are not noted or put into minutes.
   • There should be open but confidential discussions.
   • If anything is written down into a minute, it's disclosable to a tribunal.
   • The reasoning behind the decision should be included in the outcome letter.
3. Ensure all communications, particularly outcome letters, are signed by the correct person.
   • All correspondence should be signed off by the correct person – the decision maker of the panel.

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