At a recent networking event a director for a medium sized business told me about a problem employee at work. She said that the employee was causing damage to her business but she felt unable to reprimand the employee because there was no clear-cut evidence.

I was quite surprised at my new friend’s comments: whilst I always urge clients to take a fair approach to managing difficult situations with employees and to make informed decisions I would be horrified if I ever suspected that my own clients felt they could not tackle behaviour that was detrimental to their business. After speaking to a few more owner/managers at the event I found a common perception that the law is weighted very much in favour of employees and that it was unsafe to tackle misconduct without a cast iron case.

In reality the law does not enforce quite the same level of draconian standards upon employers as my peers at the networking event perceived. Yes, an employer must show reasonable grounds, based on reasonable evidence, for pursuing an investigation into misconduct but unlike the criminal courts there is no requirement for proof beyond any reasonable doubt that an employee is guilty of misconduct in order to take action.

The Court of Appeal has reinforced these rules when dealing with a university that instigated a disciplinary procedure in response to an incorrect reference produced by a university lecturer. At the time it appeared that the lecturer had lied about the competencies of a colleague. There were clear grounds to suggest that there had been a deliberate attempt to create a false impression to the recipient of the reference, another university. Following an investigation, a disciplinary process began. At the disciplinary hearing, after lengthy deliberation, the university decided that no disciplinary sanction should be applied to the lecturer.

The employee claimed that the university’s ‘duty of care’ towards her had been breached. The judge agreed with her because he found that after the end of the lengthy disciplinary process, the allegations of misconduct were questionable. The Court of Appeal overturned the original judgment. It found that at the time of commencing the investigation, there were reasonable grounds, in other words grounds within the range of reasonable responses to the situation open to the employer, to suggest that the employee had falsified the reference. There was no breach of duty of care.
This case illustrates a number of key points for employers when considering investigations into potential misconduct:
• It is important for an employer to clearly define the allegations at the outset. The investigation should involve searching for relevant evidence and speaking to each relevant witness before putting the allegations to the individual who is the subject of the allegation.
• An employer should consider any particular vulnerability on the part of an employee when deciding how to discuss a disciplinary investigation and/or the level of pastoral support that should be provided to an employee
• The subject needs to have a clear understanding of what the allegations are and the investigator should be careful to ensure that any issues that arise as a result of an interview are followed up before a decision on the pursuit of disciplinary proceedings is made.
• An employer is not required to carry out a police style investigation in relation to alleged misconduct and/or prove allegations beyond reasonable doubt before taking disciplinary action.

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