CAughT in the act!
Yesterday, when I returned home part of the curtains had fallen down. Without investigating the matter I turned to my kitten and stared at him intensely. 'You did this,' I thought. It could not have been anyone (or anything) else because you were the only one here during the material time. He was ipso facto responsible. No defence! Guilty! He gave me his innocent, yet guilty look and walked off with his tail in the air.
But then the employment lawyer in me said I needed more than just circumstantial evidence. As one does in circumstances like this, I thought of the ACAS Code of Practice Disciplinary & Grievance Procedures - March 2015 and what it says about, "the basic principles of fairness set out in this Code should still be followed." In particular, "It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case." So, this morning I set my trap (entrapment). He looked mischievous, as to say, what trouble can I get up to now? I observed.
CAughT in the act! All thoughts were running through my mind. Was 'Entrapment' lawful? I have had him for just 2 months so he does not have the requisite 2 years to qualify for protection from Unfair Dismissal but he and I both know that dismissal is not and would never be an option. In any case, he is not an employee (he is not even a worker, for that matter!). I thought about making reasonable adjustments - remove the sofa and take down the curtains - but that obligation applies only under the Equality Act 2010 and that does not apply here, especially as the question of disability does not even arise. I looked at the mitigating factors but there were none. So, taking everything into account, I checked my mental Disciplinary Policy and gave him another Oral Warning.
Seriously, as an employer, even if the evidence appears 'clear cut' to you (caught in the act), you must still adopt a fair procedure when implementing the Company Disciplinary Policy. That means, a fair investigation by an independent investigator (ideally, someone not previously associated with the matter - the alleged eyewitness etc). The employee in question is entitled to be accompanied by a trade union member or work colleague, which does not, contrary to what some may believe, prevent an employer from allowing the employee to accompanied by someone who is neither. The same rights apply if there is an appeal. Ideally, there should be no unreasonable delay in dealing with the matter in question and it should be made clear to the employee with reasons how the employer reached the decision it has.
A failure to act accordingly could lead to a successful complaint of Unfair Dismissal, which, procedurally at least, might easily have been avoided.