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The disciplinary process – the importance of a paper trail

Today more than ever the manner in which you discipline you employees is most important. The allegations being investigated and discussed may potentially be gross misconduct or minor misconducts but the common thread throughout is that a paper trial must exist. This begins with either a letter of suspension or an invite letter to


either an investigation or disciplinary meeting.

Recent decisions from the Employment Appeals Tribunal have shown that Tribunals are looking at the manner in which the disciplinary process was conducted. That is to say that the employee was suspended (in cases of gross misconduct) and told in writing of the manner in which the matter would be handled i.e. investigated; invited in writing to the investigation/disciplinary meeting. The Tribunals will also ask to look at minutes of any meetings and will ask to see signatures on minutes so it is ensured that the minutes are a true account of the meeting.

The letters:

SUSPENSION LETTERS
This letter should show the date on which the suspension took place. It should outline the allegations the employee is facing and the fact that the employee will be paid for the duration of the process.

INVESTIGATION INVITE LETTER
This letter should show the date, time and location of the meeting. It should also show the allegations that are being investigated. While at the informal investigation stage, you are not obliged to allow the employee to have representation, however if it is decided to allow this, then the employee’s right to representation should be specified in the invite along with the name of the person who is going to act as note taker for the meeting.

DISCIPLINARY INVITE LETTER
This letter should show the date, time and location of the meeting. It should also show the allegations that the employee are potentially being disciplined for. The employee’s right to representation or a witness is also stated along with the name of the person who is going to act as note taker for the meeting. If an employee is on a final written warning then the employee needs to be made aware that if the allegations are found to be true then they could potentially be dismissed. The same should be stated if an employee is being invited to a disciplinary meeting on foot of allegations that are based on gross misconduct.

The minutes:

The minutes from each stage of the disciplinary process should be made available to the employee before moving onto the next stage. All those taking part or attending the meeting should sign these minutes. The minutes should not be points or general comments but be a true reflection of who said what. In some cases employers are now recording the meetings alongside taking written minutes. If a meeting is recorded, in line with the Data Protection Acts the attendees must agree to the audio recording. The minutes of the meeting should be transcribed within 24 hours of the meeting and be made available to the employee as soon as possible. This may hold up the decision making process but in order to preserve the process it would advisable to have the minutes reviewed and signed before the process moves forward.

The outcome:

Employees should ideally be invited to an outcome meeting which again should be minuted. In addition the employee should always receive confirmation of the decision in writing within 24-48 hours afterwards, even if no outcome meeting will take place.

The outcome letter should include the date, time and location of the meeting, who was present and what the allegations were (these should match those of the original invite letter). The letter should highlight the defence raised by the employee and what was found to be acceptable or not. The letter should also point out the decision and sanction and how long it will last and most importantly who the employee can appeal the decision to and within how many days.

While it may be daunting writing to an employee to invite them to a disciplinary hearing or to inform them of what level of warning is an appropriate level of warning following their actions, the 24 Hour Advice Line is there to assist with such a paper trail. The advice line can guide you through the process and provide template invites and warnings as well as reviewing and amending final drafts where appropriate.

Should you wish to discuss individual circumstances, you should contact our 24 Hour Advice Line for further assistance or visit us at: Peninsula Ireland

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