persistent misconduct


A recent case sends a clear message to business owners that their HR departments involvement in a disciplinary process must be carefully managed.

An employee was accused of over claiming his expenses. The matter was investigated by a manager who had no prior experience of managing disciplinary proceedings. The manager produced a report for the internal HR department to review. He concluded that the employee was not dishonest but should receive a final warning. However, the HR department changed the report and concluded the employee was dishonest and should be dismissed.

The court ruled that the HR department’s input strayed into guilt and sanction rather than procedure and legality. The HR department had not heard the employee’s representations (as they had not met with him) and could not, and should not, have reached decisions on his guilt or sanction.

In addition the court concluded that email exchanges between the manager and the HR department were disclosable, and unlike exchanges between a client and their lawyer, did not attract legal professional privilege.

Three key learning points from this case:

  1. All exchanges need to be checked and vetted or sent via a lawyer to claim privilege. Beware of the smoking gun…
  2. If additional issues/lines of enquiry are identified then these matters should be put to the employee at an additional meeting before any decision is reached on guilt/sanction.
  3. Giving managers sufficient training to enable them to properly manage investigations and disciplinary processes is key. Employment tribunals will always ask managers what experience and training they have received.

Ensuring your team is best equipped to manage workplace disputes is vital to avoid costly claims. If you would like further information, or training, on the investigation and management of grievance and disciplinary processes please contact Nick Phillips at Beswicks Legal on 01782 205000 or