Is an investigatory hearing always needed in a disciplinary process?

One of the most common misconceptions among employers – large and small – is that they must hold an investigatory meeting as part of any disciplinary process, as well as the disciplinary hearing itself. In Sunshine Hotel v Goddard, the Employment Appeal Tribunal confirmed that there’s no such legal requirement. Gethin Bennett comments.

When an employer carries out a disciplinary process, it should always follow the Acas Code of Practice (as well as its own policies). Failure to follow the Code isn’t unlawful in itself, but an employment tribunal must take the Code into account when considering whether or not an employer has acted reasonably. There are also implications on the amount a tribunal can award a successful claimant – for example, if an employee wins an unfair dismissal case, the tribunal can adjust the amount of compensation by up to 25% either way (if either the employer or employee has unreasonably failed to comply with the Code).

As for what’s needed as part of a disciplinary procedure, the Code provides that:

It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. In some cases, this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing.”

Provided it acts reasonably in its investigations, an employer therefore doesn’t need to hold an initial investigatory meeting – it only needs to conduct its investigations properly to establish the facts. Although nearly all cases will involve an investigation of some sort, the amount of investigation required will vary depending on the individual circumstances – as the Code notes, the more serious the allegation, the more thorough the level of investigation required.

In most relatively straightforward cases, for example, it wouldn’t be considered unreasonable to hold only one disciplinary hearing (provided of course that the employer has carried out its investigations reasonably and without delay, and has presented the employee with full details of the allegations made against them to be able to respond meaningfully).

However, despite there being no statutory requirement to hold an initial investigatory meeting, employers should always be careful that no such requirement exists in any:

  • collective agreement with a trade union
  • disciplinary or other policy, or
  • contract of employment

A failure to follow such an agreed requirement may lead to a successful claim for unfair dismissal (and potentially for breach of contract).

Finally, employers should always remember that there’s a difference between an investigation and any subsequent disciplinary proceedings – for example, if an employee admits guilt at an investigatory hearing, this doesn’t absolve the employer’s duty to hold a follow-up disciplinary hearing (in which the employee can present their case properly). Similarly, the Code makes it clear that an investigatory meeting should not, by itself, result in any disciplinary action.

For more information, please get in touch. Keep an eye out too on our upcoming events – we often hold breakfast briefings and training sessions on conducting investigations and disciplinary proceedings.