An employer might want to take disciplinary action against an employee for a number of reasons. But to be successful, it is important for employers to have clearly defined disciplinary procedures in place, and then to follow them when dealing with acts of potential misconduct, says VWV’s Mark Stephens.

There is an implied term in all employment contracts that employers and employees have a duty of mutual trust and confidence. If this duty is breached, the innocent party can claim that this is a fundamental breach of the employment contract. If an employer breaches the duty, the employee can terminate their employment and bring a claim against the employer in the Employment Tribunal for wrongful dismissal. 

To bring a claim for constructive dismissal, the employer must be in ‘repudiatory breach’ of a term of the contract. This means a breach that is so fundamental that it goes to the root of the contract. The employee must then show that they resigned in response to the relevant breach. The breach can be a singular act or made up of a number of acts or events which accumulate over time, leading to ‘the final straw.’ 

Policy should be clear  

Employers should have a disciplinary policy in place which clearly sets out the course of action they will take if an employee is suspected for acts of misconduct. This policy does not have to be part of the employment contract, but it should be in a separate document which all employees are referred to when they start. 

In the majority of cases, if an employer needs to carry out an investigation into an employee’s conduct, the employee should be able to continue working for the employer, even if adjustments need to be put in place. Employers should only suspend an employee if there has been a serious allegation of misconduct which means that it would be impossible for the employee to continue in their role while the allegations are investigated. 

If it is necessary to suspend an employee, they should be sent a letter which includes the reasons why they are being suspended and how long the suspension is expected to last, their rights and obligations during the suspension and a statement that the suspension does not imply that the employee is guilty of anything. The suspension should not last longer than is necessary. 

Steps to be taken

If an employer suspects an employee may be guilty of misconduct, there are a number of steps that should be taken.

1. Decide whether the matter could be dealt with informally. Would a private conversation with the employee be enough to clear matters up? It may be that they can explain their behaviour and there will be no need for matters to proceed further.
2. If a more formal approach is required, the employer should go through a fact-finding process. This can be a formal investigation, or it can be a simple process of establishing the facts. It is important, however, to keep a record of any steps taken. 
3. It may be necessary to suspend the employee. Even if the employee is not suspended, they should be informed in writing of what is happening and what the allegations of misconduct are. 
4. A meeting should be held with the employee to allow them to present their case. They have a right to be accompanied to this meeting by either a trade union representative or a colleague. 
5. They should be informed of the result in writing – no further action, a first warning or recommendation for further training, or a final warning or dismissal.
6. The employee must be given the opportunity to appeal the decision. Even if a first warning is issued, the employee has a right to appeal this as it will still form part of their disciplinary record. 

Maintain mutual trust

Employers are entitled to suspend employees if it is necessary for them to fully investigate acts of misconduct. However, it is important to remember that employers and employees remain bound by the employment contract during periods of suspension. This means that the duty of mutual trust and confidence should not be undermined, which in turn means that a documented disciplinary procedure should be followed if required.

Smaller businesses may be given more leeway in terms of the resources that are available to them in a formal process, but the clearer the process that will be followed when employers suspect misconduct, the easier it will be for employers to be able to show an employment tribunal that they have followed a fair process and not breached an employee’s rights.

Mark Stevens is a senior associate in the employment team at VWV.