Mastering the Art of Wording Disciplinary Allegations

Why is the wording of allegations critical?

Getting the allegations right in a disciplinary matter is crucial. The objective of an investigation is to establish an impartial and equitable understanding of the facts concerning disciplinary accusations against an employee, prior to determining whether to proceed with a disciplinary hearing. The respondent to any allegations is entitled to receive advance notification of these to allow them to prepare their response.

As such the allegation wording firstly, ensures that the employee understands the exact nature of the concerns being raised against them and enables them to respond appropriately. Secondly, well drafted allegations provide a fair and impartial framework for the decision maker to determine whether the employee’s behaviour constitutes misconduct.

Poorly articulated allegations can lead to unfair outcomes, denying the employee a fair hearing and potentially resulting in a legally challengeable decision.

This guidance is relevant both for suspension notices and disciplinary hearing invitation letters.

What are common pitfalls?

There are common pitfalls that should be avoided when drafting allegations.

One of these is expressing allegations as vague assertions without supporting detail or using imprecise and subjective language. This can make it difficult for the employee to understand the specific behaviour they are being accused of and respond accordingly.

It is important to be precise, provide specific dates and times (where possible – or narrow down the period), provide specific incidents of behaviour, and avoid subjective descriptors that lack clarity.

Good practice tips for drafting allegations

To ensure effective allegations, the following tips should be considered:

1. Be specific as to the “when”

Clearly state when the behaviour is alleged to have occurred, this included a time and location where possible. This assists the employee with recalling the alleged incident.

2. Focus on specific behaviours

Clearly identify the behaviours the employee may have engaged in or failed to comply with, linking them to specific incidents.

3. Be precise and avoid vagueness

Clearly articulate the allegations, including how they arose, what specific behaviour is being alleged, and who (may have) witnessed it.

4. Use objective and non-inflammatory language

Avoid subjective and inflammatory terms that may bias the perception of the employee or create an unfair process.

5. Reference policies and legal obligations

Connect the alleged behaviours to relevant policies or legal obligations to establish the seriousness of the misconduct.

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Allegation wording examples

The allegations to be considered in relation to your conduct are as follows:

• Sample allegation 1

That on or around [Date] at approx. [Time] you did [XYZ] which if proven would be a potential breach of the organisation’s XYZ policy and procedure.

• Sample allegation 2

That on or around [Date] at approx. [Time] whilst in the reception area you were observed by the reception staff to [XYZ], which if proven would be a breach of the organisation’s [XYZ] policy and procedure.

• Sample allegation 3

That on or around [Date] at approx. [Time] you breached [XYZ] policy by wilfully/deliberately [XYZ], in neglect of your duty, as witnessed by [XYZ] and which if proven may be deemed gross misconduct.

Legal considerations

In the context of disciplinary hearings, there are legal considerations that must be taken into account. The Employment Rights Act 1996 sets out the law of unfair dismissal, which requires a fair process to be followed in addition to a valid reason for dismissal.

Careful and correctly worded allegations play a crucial role in determining whether a fair process has been applied.

Acas Code of Practice on Disciplinary and Grievance

The Acas Code of Practice on Disciplinary and Grievance is a valuable resource for employers. While it is not a legal document, it provides practical guidance on handling disciplinary matters. Following the code is expected of reasonable employers, and failure to comply with it may result in adjustments to compensation in a potential legal challenge.

The code emphasises the importance of notifying the employee in writing about the alleged misconduct or poor performance, allowing them to present their case, evidence, and respond to the allegations.

It also highlights the need to specify the nature of the misconduct and the required changes in behaviour when deciding on appropriate action.

Special guidance for Gross Misconduct allegations

Gross misconduct allegations require additional considerations. These allegations, if upheld, can lead to summary dismissal for a first offense.

In addition to the general guidance, it is recommended to include the term ‘gross’ in the allegations, signalling the potential for summary dismissal. Describing the misconduct as deliberate and wilful or negligent helps establish the seriousness of the behaviour. By setting a higher bar for gross misconduct, it reminds all parties of the extreme or abnormal nature of the alleged conduct.

In conclusion, the proper drafting of allegations is crucial for conducting fair disciplinary hearings. Clear and specific allegations allow employees to understand the case against them and respond appropriately. By following good practice tips, considering legal considerations, and adhering to the Acas Code of Practice, employers can ensure a fair process and minimise the risk of unfair dismissal claims.

If you require any further advice or support regarding allegations, please feel free to contact us via 01924 827869 or contact us here, to find out more about our full suite of HR services.