Can two unrelated incidents be covered in one disciplinary hearing or does each complaint require a separate procedure? Martin Brewer, partner and employment law specialist at Mills and Reeve, and Esther Smith, partner at Thomas Eggar, explain.
The question:
“An employee is currently on suspension following a racist remark being repeated [to other members of staff]. We have today had a serious complaint from a customer in relation to a totally incorrect order being shipped by this employee. The employee was disciplined about her lack of quality control two months ago and given strict instructions to follow the procedures or face further disciplinary action.
“I want to extend her period of suspension and ask her to attend one disciplinary to answer both allegations – the race issue and the quality control issue.
“I cannot find anywhere that says I cannot do this. Please can someone let me know if I am wrong. Thanks.”
Lorraine Whale
The answers:
Martin Brewer, partner and employment law specialist, Mills and Reeve
Lorraine, if these are both conduct issues then yes you can deal with them at one hearing. However, the key point is to ensure that you deal with the issues separately in that one hearing and that the decision makes it clear what is proved against the employee and, crucially, if you are going to dismiss, whether that dismissal is only for both incidents taken together or for either one.
My only caveat is that you need to be clear that the quality control issue is ‘conduct’ and not ‘capability’ because although both may require a hearing, one deals purely with punishment (conduct) but the other deals with punishment plus, potentially, support to help the employee improve. Even two failures of this sort may not lead to dismissal and therefore connecting one conduct incident with one capability incident may lead to a dismissal which, if the issues were looked at separately, would not be the sanction imposed.
This doesn’t mean you cannot deal with conduct and capability at one hearing but it’s not ideal and is best avoided.
Martin can be contacted at: martin.brewer@mills-reeve.com
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Esther Smith, partner, Thomas Eggar
Hi Lorraine, this is a commonly asked question and many HR practitioners are under the impression that they cannot address two different issues at the same disciplinary. This is not the case! Clearly here you have good grounds for needing to invoke the disciplinary procedures in light of the customer complaint, and it is just coincidence that the employee is already suspended. The only time you would have a problem is where the information about the second issue was already known to the employer at the time of suspension but that they had only just decided to act on it.
You do need to notify the employee of the complaint as soon as possible and confirm that you will be investigating. Given that the employee is already suspended it is sensible to tell the employee that this matter will be addressed at the same disciplinary hearing as the issue for which they are currently suspended. You then need to make sure that the employee has full details of both allegations, with supporting documentation etc, before the disciplinary hearing can address both issues together.
Esther can be contacted at: clairec@midnight.co.uk
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information please visit Thomas Eggar
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