Employers Duty Of Care During Disciplinary Proceedings

Disciplinary investigations, hearings and procedures can be extremely difficult and stressful for the employee accused of wrongdoing.

Regardless of the nature of the allegations the employee faces and the evidence that an employer may have collected so far, the employee is still employed and the employer is required to provide an appropriate level of care and support. This is particularly the case where a person has previously struggled with their mental health.

What the law says

From a legal perspective, an employer owes a duty of care to the people that they employ during any investigation or proceedings, regardless of the seriousness of the allegations made against the employee.

An employer could be liable for any mental harm caused to an employee during an investigation and could face a claim for constructive dismissal if the employee concerned feels that the employer has fundamentally breached a term of the employment contract (including an implied term such as the implied term of trust and confidence which requires both employer and employee to treat each other with mutual respect).

Duty of care during a disciplinary investigation

Businesses that are undertaking a disciplinary procedure should be mindful, particularly if the employee has previously struggled with their mental health, to check on the worker during the investigation to ascertain whether they have an appropriate level of support outside of work.

If the employer believes that the worker does not have the necessary support in place and that they may become isolated during the investigation, then they could offer them:

This doesn’t mean that the disciplinary process should be any less thorough or robust, it just means the employer should be mindful and considerate of the impact that the process can have on the mental well-being of the employee.

Consideration should also be given to how quickly the matter can be dealt with, without compromising the process. Delays and lengthy periods of uncertainty are unhelpful for all involved.