Effective crisis management requires a forward-thinking and systematic regime. It is almost impossible to predict when and where a future event will occur and so preparation is crucial. It is essential that employers have flexible and workable procedures in place which enable potential risks to be identified at an early stage and can effectively manage an emergency situation.
The importance of a disciplinary procedure
Even where evidence emerges which strongly suggests that an employee is guilty of gross misconduct, it remains important to follow a disciplinary process. Haringey Council dismissed Sharon Shoesmith, Director of Children’s Services following an enquiry into the death of Baby P. It faced public pressure to dismiss her and it did so without following a disciplinary process. A court found that to be unfair and it is reported that she was paid compensation of nearly £700,000.
Suspend the employee?
Where an employee’s misconduct or negligence is suspected of causing or contributing to the crisis, should the employee be suspended on full pay? Suspension should not be an automatic reaction – it is important to consider whether it is necessary to suspend the employee either to prevent further misconduct or in order to avoid interference with the investigation.
The disciplinary investigation should tie in with the crisis investigation and it will often rely upon statements and evidence obtained during that investigation. As such, the individuals carrying out the respective investigations will often need to liaise closely to ensure that full and proper investigations take place. Ideally, the individual carrying out the disciplinary investigation should not be involved in the disciplinary hearing or appeal.
It is important that lines of enquiry which point to the employee’s innocence are pursued fully. A failure to do so will often render a dismissal unfair. Where the investigation concludes that it is not misconduct which caused the crisis, but for example an employee’s lack of skill or experience, it may be appropriate to proceed under the organisation’s capability procedure, rather than proceed to a disciplinary hearing.
At the disciplinary hearing, employees often put forward new information or explanations. This will usually require further investigations to be carried out. It is important to feed any further evidence into the crisis investigation to ensure that both investigations are aware of all available evidence. The same applies at the appeal stage.
Ongoing police investigation/criminal proceedings
Difficulties can arise where the police are investigating and/or criminal proceedings have been brought against an employee who is subject to disciplinary action. The employee may choose to stay silent or refuse to co-operate with the employer’s investigation, often on legal advice that co-operation may prejudice criminal proceedings. In those circumstances should an organisation await the outcome of the criminal proceedings or proceed with the disciplinary process with the available evidence? Where the available evidence is strong enough to support dismissal, in the absence of an explanation, it should be reasonable to dismiss without awaiting the outcome of the criminal proceedings. However, where the evidence is less clear cut, it may be necessary to put the disciplinary process on hold pending the outcome of the criminal proceedings.
The disciplinary outcome
When considering the disciplinary outcome, it is important to ensure that evidence uncovered during both the crisis and disciplinary investigations is taken into account. For example, the crisis investigation may have uncovered systemic weaknesses amounting to mitigating circumstances which would make it unreasonable to dismiss.
Whilst the outcome of disciplinary hearings should be kept confidential, it may be appropriate to issue a reminder to staff about the standard of behaviour expected in similar circumstances to those which led to the crisis and that a failure to meet those standards will result in disciplinary action.
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