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Disciplinary process – external bodies

 A useful article considers two recent cases on the issues that can arise for employers carrying out a disciplinary procedure when an external body becomes involved eg a regulatory body, police, a court or tribunal. The decisions provide guidance to employers on how to act when an external process, be it a regulatory or criminal investigation or critical court judgment, calls an employee’s conduct into question. The lessons for employers are as follows:
 
Suspension is an option but it must be on full pay: when an employee comes under investigation by a regulatory body or by the police, their employer may want to suspend them during its own investigations of the matter. Critically, the suspended employee should remain on full pay throughout the suspension. The only exceptions are if their contract of employment expressly provides for a deduction of pay in the situation or exceptional circumstances arise eg the employee admitting to being guilty of misconduct.
 
No requirement to pause internal disciplinary proceedings: an employer may have already instigated its own internal disciplinary procedure or it may wish to commence the process having learnt of an outside investigation into an employee. The employee is likely to attempt to halt the internal investigation pending the outcome of any parallel investigation. The employer is nonetheless entitled to progress and conclude its own disciplinary procedure, even going so far as to dismiss the employee, without waiting for the completion of other proceedings.
 
The external process may simplify the internal process: where a court or tribunal makes findings against an employee, eg negative findings about their credibility as a witness, an employer may rely on those findings to proceed straight to a disciplinary hearing. It does not have to carry out its own investigation first.
 
The other aspects of the disciplinary process must still be fair: the fairness of the overall process is of paramount importance and employers should not overlook this. In one case, the employer fell short because although it had allowed the employee right of appeal against dismissal, there was no actual appeal hearing. So, even though an employer may be able to continue its own process while an external investigation is ongoing, this does not mean other aspects of the procedure can be careless.
 
Source: [2019] 202 Employment Law Journal 19.
 

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