Carrying out a Disciplinary Interview
In a previous edition of the ERB Monitor we looked at the process of conducting a hearing in the workplace usually as part of an investigative process into an incident, an allegation, a grievance or as part of an appeal against a previous decision. This article will focus on conducting a Disciplinary Interview as an integral part of the overall Disciplinary Procedure.
Disciplinary interviewing is often as stressful and daunting a task for the manager or supervisor as it is for the employee concerned. The fear of making a mess of it, damaging a good working relationship, or being found guilty of unfair dismissal in Court are enough to seriously damage a Manager's health.
The primary purpose of a disciplinary procedure is to help the employee whose conduct or performance falls below organisational standards to improve. In practice then, the actual interview must allow the employee to present his/her point of view and give a comprehensive picture of the case. Through a constructive discussion of the issues, the employer should be able to assess culpability, to decide on appropriate action and to attempt to effect the desired change in the employee's behaviour.
Two key requirements of direct relevance to disciplinary interviewing, which are well established in the Irish Constitution and in our case law, relate to the 'investigation' and 'hearing' elements of the process. An inadequate investigation of the situation on the part of the employer may give rise to a dismissal or disciplinary action being deemed unfair. Accordingly, a reasonable and fair investigation of the matter should be undertaken by the employer prior to a decision to dismiss or discipline. The employer is also obliged to put the relevant case to the employee, thus allowing him/her to respond. A refusal to allow representation at such meetings is also likely to render a disciplinary or dismissal decision unfair.
According to the Code of Practice on Disciplinary Procedures, issued by the Minister for Enterprise and Employment in 1996, representation, by an 'employee representative', includes a colleague of the employee's choice and an authorised trade union, but not any other person or body unconnected with the enterprise (e.g. the local solicitor). The Code also emphasises the 'principles of natural justice', with their implications for the disciplinary interview. However, employers do have discretion to allow employees bring any representative of their choice.
Firstly, details of the allegation must be put to the employee, and secondly, they should be given the chance to respond to the allegations. Failure to adhere to these 'golden rules' is likely to leave the relevant disciplinary action void. Whilst this may seem quite obvious, it is interesting that a recent study at the University of Manchester discovered that in dismissing employees the key factor, frequently leading to unfair dismissal determinations, was that employees were not given a chance to defend themselves or put forward their side of the story.
Consequently, to get the best out of the disciplinary procedure, it is advisable that interviewers adhere to the following recommendations, which are categorised into the BEFORE, DURING and AFTER stages of the interview:
Before1. Decide on the best time for the interview. This should be close to the incident. However a 'cooling off' period may be required, to ensure that parties approach the interview rationally rather than emotionally. This will also enable you to do the all-important preparatory work.
If the offense is adjudged to be of a serious nature, it is advisable that the employee be advised immediately of the situation in the presence of their representative, given a chance to respond and suspended pending investigation into the alleged misconduct. This should be with pay. When a thorough investigation is completed, the interview can proceed.
2. Research carefully and confidentially. Check the range of relevant documents on the employee's personal file (previous warnings, training received, appraisal records etc.), the disciplinary procedure and company precedents, the facts of the case (who - where - when - why - how - it is or I think it is), and the required and average performance standards on the job. Rigorous preparation will help you avoid 'getting egg on your face'. Indeed it may be that having completed your investigation you'll decide to take no action, or settle for an informal discussion of the issues and come to an agreement on what changes are necessary.
3. Plan the interview structure and your key questions. Write down all of the facts and be prepared to substantiate them.
4. Decide on the personnel to be involved. Where issues have reached a serious stage, at least two management representatives should be present, to ensure correct and consistent application of rules and procedures. You should also be clear as to who has the authority to formally warn or dismiss staff. The aforementioned Code also recommends that the employee concerned be allowed to confront or question witnesses.
5. Advise the interviewee of the time, place and purpose of the interview and their representation entitlement.
6. Allow enough time - as you never know what will surface in the course of such a delicate, yet potentially explosive meeting - and prohibit interruptions. Ensure that the physical lay-out of the room is appropriate to the purpose of the meeting.
During1. Don't be cosy, yet don't be rude - strike the right balance. In any interview the interviewee deserves a fair hearing. You don't want to intimidate the employee to the extent that you only hear his/her side of the story when it's told by his/her legal representative at the Employment Appeals Tribunal! At that stage it's too late and too costly for you.
2. Remain calm throughout the meeting, whatever the provocation or personal jibes. This should help you to see the key issues in a more objective light.
3. Deliver your opening statement. This can take the form of advising those present that it is a disciplinary interview, the stage of the procedure you're at, your role relative to the procedure and the function of other people present (i.e. representatives, witnesses etc.). The structure of the meeting should then be outlined.
4. The structure of the meeting entails the aforementioned opening statement, stating your position and posing questions. The employee and their representative will then reply, question witnesses and produce their own witnesses. You can then further question the employee and his/her witnesses. The employee should be encouraged to highlight any issues they consider important, including any mitigating circumstances. There may also be adjournments.
5. Use open-ended questions to elicit information, and probing and close-ended questions for clarification and to eliminate evasions. Your questioning and presentation of the case should be neutral, creating an invitation to respond. By the end of the meeting you want to have established what happened to whom, where, when, how and why. You also need to be able to differentiate between facts and assumptions (i.e. it is or I think it is).
6. Determine whether there is any mitigating evidence. The action you take depends on the circumstances and the seriousness of the offense. When determining the action to be taken the test of 'reasonableness' must be borne in mind, and should take account of the mitigating factors. This means that every situation must be evaluated on its own merits, taking account of these special considerations. The final management decision must reflect such considerations, or else it is likely to fail the 'test of reasonableness' when applied by the Rights Commissioner or the Tribunal.
7. Summarise, to ensure that everyone understands the key issues and then adjourn the meeting. This summary should reflect the key points of your original case, the employee's reply, the changes to your original case that have arisen during the meeting, the circumstances pertaining to the case as it now stands and the matters for investigation during the adjournment. Adjournments should always be for the minimum amount of time necessary to allow checks that have to be conducted and for you to confer, consider all of the issues and decide your action. Reconvene the meeting and convey your decision. Of course, should unexpected matters surface in the course of the meeting adjournments to investigate same may be required.
8. At the end of the meeting summarise the outcome and action to be taken - warn or withdraw. Should the evidence point toward disciplinary action, management's position should be explained to the employee, who should be made fully aware of his/her shortcomings and management's concern. The nature of improvement and the means for its achievement should be outlined, as should the consequences of future transgressions. Management must ensure that the employee fully understands the discipline imposed and the right of appeal.
9. If it is established that you have no case, the employee should be provided with a full explanation as to why it is not being taken any further. This explanation should be neither defensive nor apologetic. An effectively handled withdrawal from the disciplinary process can enhance the image of the organisation, and its disciplinary system as investigative-oriented and fair.
After1. Write up your records, advise the relevant personnel and send copies to the appropriate parties (e.g. Personnel Dept., the employee, the representative). Accurate records should be kept of all disciplinary issues. The more detail the better, but in particular they should set down dates, parties involved, the original case, the changes to that case, your action and its relationship to previous actions, and the particular circumstances of the case and how they affected the final action. At the counselling stage, a brief note of the issue, the individual concerned and the date and nature of the discussion would suffice. At verbal, written and all subsequent stages, the records should be more elaborate - including reference to what has been done 'to put things straight'.
2. At the end of the disciplinary interview you will have outlined the nature of improvement and the means for its achievement. You should subsequently monitor the employee's performance or conduct in an attempt to ensure that it does not recur.
3. Work at trying to prevent relationship(s) deteriorating. Disciplinary action can be a source of discomfort, disrupted relationships and resentment. Whilst your final action may be fair and reasonable in the circumstances, it is unlikely to endear you to your staff. Your action should be followed up, to ensure that the problem does not arise again. You should not gloat over your handling of the problem, but make positive efforts to consolidate the relationship.
4. Wipe the slate clean in due course (if appropriate). Warnings should remain on an employee's record for as long as is consistent with the nature of the offense in accordance with organisational rules and practice. Minor warnings tend to have a shorter time scale than those relating to more serious issues.