Disciplinary processes are difficult and stressful for all concerned. Failing to follow the process correctly can result in significant compensation awards to employees who raise personal grievances.

In a recent case, the Employment Relations Authority awarded an employee $37,000 due to the process not being fair. This was a big cost to the employer, on top of the time and money spent trying to defend the claim.

These awards are often made despite the employer otherwise having a justifiable reason to discipline the employee!

From my experience, the 7 most common mistakes employers make are:


1.    Failure to tell the employee what the allegations are…

When starting a disciplinary process, the employee must be informed of the investigation and what it is alleged has been done. Put this in writing so there are no arguments as to what was alleged.

In this letter the employee should also be advised of possible outcomes of the investigation if the allegations are found to be correct. This includes any possible disciplinary action, including warnings, or up to, and including, dismissal.


2.    Failure to give the employee a chance to respond to the allegations…

An employer undertaking an investigation must seek input, and provide opportunity for the accused employee to respond, throughout the process.

If an employer feels the need to suspend an employee during the investigation, before making a decision on suspension the employee should be informed that is being considered and invited to provide their views on the proposed suspension. This should, if possible, be done face to face.

During the investigation process and in meetings the employee must be given the opportunity to respond and provide their explanation.

If the allegations are found to be correct the employee must have an opportunity to comment on any proposed outcome before it is imposed.


3.    Failure to allow for a support person or representative…

Accusations and disciplinary processes are stressful for the employee. Having a support person, whether it is a friend, family member, or representative, present not only helps the employee through the process, but helps ensure they are being treated fairly throughout.

Employers must inform any employee subject to an investigation that they may have a support person present during their meetings and to assist them with their response to the allegations.

The support person or representative is also not just there to “hold their hand”. They must be allowed to speak for and represent the employee.


4.    Failure to carry out a fair investigation…

Employers must not pre-judge the outcome. When interviewing other employees, employers must be careful not to question in a way that indicates they want a particular answer. Staff that are interviewed should be given the opportunity to give a full account of the incidents(s).

The investigation must look at all the available evidence and not just that which supports the allegations. If any employee suggests that someone witnessed the events, or has knowledge of what occurred, they should be interviewed.

It is also important to remember that the onus is not on the employee to prove their innocence.

It is the responsibility of the employer to establish what (if anything) has occurred. Keep an open mind.


5.    Failing to come to fact-based conclusions…

Making findings not based on facts is a common mistake. What evidence is there to find the facts?


6.    Getting the seriousness wrong…

If the allegations are correct, how serious is the event? Finding serious misconduct, when it is not serious enough, happens too often.

Misconduct should be dealt with at the appropriate level. What should the proposed outcome be? Should it be a warning or dismissal?

Employers commonly give verbal warnings, but forget to put them in writing, and give a copy to the employee, as well as put a copy on the file.

Should any dismissal be without notice or on notice? Only the most serious disciplinary matters justify a dismissal without notice.


7.    Failing to act consistently…

Another common mistake is failing to deal with employees consistently. How have others been dealt with (in the past or in this same event)? Outcomes do not have to be the same, but you need to be able to justify why you acted differently.

The disciplinary process must be carried out correctly. Failure to do so risks businesses facing costs and disruption that would otherwise have been avoidable.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-priced Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Alan Knowsley
Employment Lawyer