Is it possible or worthwhile to discipline an ex-employee? Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner and employment law specialist at Mills & Reeve, advise.
The question:
An employee handed in their notice at the same time as an investigation was ongoing. Due to the complex nature of the investigation and the thorough fact finding, the decision to proceed to a disciplinary was made in the last week of notice.
On one hand, what can HR achieve apart from holding the hearing in absence?
However, there are professional standards and a code of practice which may have been broken. Their regulatory body has recommended we proceed to a conclusion.
Alex Hughes
Legal advice:
Esther Smith, partner, Thomas Eggar
There is nothing to stop an employer continuing with disciplinary action that has commenced prior to termination of employment, or indeed in seeking to discipline an ex employee. However, in reality it does not tend to happen that much simply due to the practicalities of the situation. If you progress disciplinary action against an ex employee you will invest a great deal of time and effort and effectively have no result at the end of it, as there are no sanctions that can be imposed as a result of the process if the person is no longer employed.
In situations where the nature of the alleged misconduct is very serious, and also in particular regulated industries, as appears to be the case here, continuation of disciplinary processes can be worthwhile. Many employers wish to continue the action so that they can refer to it in any subsequent reference provided on the employee.
My opinion would always be to try to take a pragmatic view of these matters and assess whether there is any real, practical benefit to continuing the process given the work involved in doing so. If it is just a matter of principle, my advice is generally to try to take a more commercial view and do what is right for the business which usually means dropping the disciplinary. However, if there is some purpose to progressing the disciplinary other than to satisfy the employer, then by all means proceed.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information please visit Thomas Eggar
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Martin Brewer, partner and employment law specialist, Mills and Reeve
Alex, it isn’t really possible to discipline an ex-employee since there’s no way you can impose a sanction. However it is perfectly proper, should you wish, to complete the process in the employee’s absence. There are at least three reasons for doing this.
First because it can help other employees bring ‘closure’ to the issue.
Second because it may help the organisation establish a train of events, learn lessons from what occurred and perhaps amend policies/procedures in the light of the issues raised in the case (or confirm that existing policies etc. are robust).
Finally for the very reason you set out in your question; because sometimes it is necessary to discover if a person is culpable (even if they are no longer employed) since it may have ramifications wider than just the former employment.
The only thing to raise of course is that if the employee is not present then you may not have all the facts and that should be represented in the way the decision is reached and communicated.
Martin can be contacted at: martin.brewer@mills-reeve.com
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