It is important that you seek specialist legal advice at the earliest possible stage – ideally when you become aware that a complaint has been made against you/that you are likely to be suspended.
David Greenhalgh specialises in giving tactical advice to senior level executives facing these challenges. Often senior level employees will need to fight back hard to try and secure favourable exit terms. Exit terms can be achievable even where you accept that you may have done something wrong. David is Recommended in the 2022 Legal 500 guide for his work with senior executives.
David advises on the risk of possible dismissal and on how that can be avoided. David understands that the threat of losing your job and potentially your career can be very stressful given the potential related loss of income, status and lifestyle.
“Practical clear advice”
“Always at the end of the phone and very responsive”
If you have been suspended or if you have been invited to attend an investigation or disciplinary meeting (or suspect you may be invited to one shortly) you should seek legal advice from us immediately as taking the wrong steps at this stage could make it far more complex, time-consuming and costly to overturn any disciplinary decision made. There may also be opportunities early on to make pre-emptive strikes before your employer has the chance to get any disciplinary action on a formal footing (thereby wrong-footing your employer).
Here are some tips on helping you get the best outcome:
At the earliest possible opportunity on the legal merits of the allegations against you. With this knowledge, you will be able to make informed decisions, with advice from a specialist employment lawyer, on the best tactical approach.
Consolidating the facts
You should think carefully about the allegations (or potential allegations) made against you. You should make a detailed note as soon as possible of everything that you can remember that is or could potentially be relevant. As time goes on it will be harder to recall facts that could be crucial to the outcome. You should consider whether other employee have done the same, similar or worse than the allegations against you and if so to what extend any action was taken against them.
Your new best friends?
Think carefully if there are any witnesses (helpful or otherwise) to the events leading to your disciplinary (or likely disciplinary). Unless you have been told not to contact potential witnesses or you have been suspended you should consider approaching helpful witnesses and asking them to put their version of events in writing. If you are prohibited from contacting potentially helpful witnesses you should consider providing their names to your employer and telling your employer you expect them to be interviewed as part of any investigation prior to any meeting. You should also state the aspects of your case that you believe they can give evidence about (ideally having checked with the individuals first).
Strengthening your position
You should think carefully about which documents could be helpful as there may be emails (and potentially other documents) that can be used to support the points you plan to rely on. You should ask your employer in writing for copies of those documents before your meeting. If your employer refuses you should ask for the reason for that refusal to be put in writing. You may want to make a data subject access request.
A contractual process?
Check your employment contract and any staff handbook to see whether they contain processes around disciplinary procedure which are contractual. You should read those provisions carefully and make sure both you and your employer comply. If your employer does not seem to be following its own contractual disciplinary process you should ask it to do so.
Maximising your compensation (if you later bring a claim)
You should familiarise yourself with the ACAS Code of Practice (the “Code”) on disciplinary and grievance procedures and the accompanying guidance and make sure you comply. In the event, you later bring a successful claim, any compensation you receive could be reduced by 25% if you have not followed the Code. You should also be alert to any breaches of the Code by your employer. In the event, you bring a successful claim any compensation you receive could be increased by 25% if your employer has failed to comply with the Code.
Taking along a companion
You should consider exercising your right to take a colleague or trade union representative to your disciplinary meeting. This is likely to make the meeting less intimidating and you will also have a witness of what is said in the meeting. By asking your companion to take a detailed note you will be able to think more carefully about the points you are making during the meeting. Where the outcome of a hearing/meeting is potentially career-threatening you should push to be accompanied by a lawyer.
David Greenhalgh is experienced in supporting senior executives in regulated sectors where disciplinary allegations if upheld, can have career-ending implications. Obtaining advice at the earliest opportunity is essential ideally before you give any response to the allegations made.
During the meeting
If you have complaints about how the process has been handled you should raise them at the start of the meeting. It is usual for an employer to take notes during a disciplinary meeting though of course, this should not discourage you or your companion from doing the same. You should ask for a copy of your employer’s notes if they are not automatically given to you and you should check them carefully. If the notes are not accurate or they are incomplete, you should immediately (and before any decision on your disciplinary is made) let your employer know in writing the changes you require.
In the event the disciplinary meeting results in an outcome that you do not think is correct you should consider appealing but make sure to do so within the time limit you are given. Your position may well be compromised if you later decided to litigate at the Employment Tribunal or at Court and you do not appeal.
You need to be aware that there are strictly enforced time limits to bring an Employment Tribunal claim (generally three months from the effective date of termination or from the last act of discrimination) and longer time limits (generally six years) to bring a High Court claim. You should seek advice on the applicable time limit early on. It is important to note that any appeal of your employer’s decision to terminate your employment will not extend the application deadline.
Going on the Attack
If you have been suspended or invited to attend an investigation or disciplinary meeting you should obtain specialist legal advice as soon as possible.
We regularly support senior executives faced with disciplinary action to assess the risk of possible dismissal and in giving tactical advice on fighting back with a view to secure favourable exit terms.
We can provide advice on the risks you are facing and on all aspects of preparing for a disciplinary meeting (including advice on strategy and tactics) with a view to securing you the best possible outcome.
Where the writing is ‘on the wall’ and you sense it inevitable that your employer wants you out we can help with tactical advice on how you can fight back against your employer with a view to trying to achieve favourable exit terms . The earlier we become involved the better in terms of securing a favourable outcome.
It is very important that you seek advice as early as possible in respect of any suspension/disciplinary proceeding – time is critical and a missed opportunity can often be fatal to securing a good exit/deal.
Our employment team are experts in negotiating generous exit packages for senior executives in these circumstances, if you are a senior executive facing suspension or possible disciplinary action please contact David Greenhalgh on 020 3603 2177 or Click here to make a free online enquiry.
“Would not hesitate in recommending David”
“Personable and straight talking”
David is Recommended in the 2022 Legal 500 guide for his work with senior executives.
This article/blog is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.