The investigation which is carried out prior to a disciplinary hearing is critical to the overall fairness of the procedure being followed and any disciplinary action taken. Here are our 10 top tips for conducting a disciplinary investigation.
The investigation is an important part of any disciplinary process, not just in terms of establishing whether or not there is sufficient evidence to justify proceeding to a disciplinary hearing but also in terms of making sure the employee understands the allegations being made against them. As such employers should consider the following points.
10 top tips
1. Make sure the investigating officer is appropriate
The person who is charged with investigating the allegations is usually the employee's line manager but this may not be appropriate in every situation, for example where it is the line manager who has made the complaint against the employee or is otherwise a witness in the investigation. In such circumstances employers should appoint an alternative manager to conduct the investigation process. In either case, it is important that wherever possible the investigating officer is different to the manager who will chair any disciplinary hearing to avoid allegations that the hearing outcome has been pre judged.
2. Consider whether suspension is necessary
Whilst suspension should not be an automatic reaction, employers should consider suspending an employee on full pay where allegations against them involve serious misconduct in order to preserve the integrity of the investigation process or to safeguard the business and/or its employees. The ACAS Code of Practice recommends that any period of suspension is kept under review and if during the investigation process it becomes clear that suspension is no longer needed then the employee should be allowed to return to work.
3. Always ensure that an investigation is carried out
Even where the guilt of the employee seems obvious, it is still important that an investigation is carried out. The employee may have a plausible explanation for what they were doing which could mean that a disciplinary hearing is not required, and this will not be discovered unless an investigation is undertaken. It is also important that any investigation is undertaken quickly and without unreasonable delay.
4. Make sure the investigation is reasonable
The amount of investigation required will depend on the particular circumstances, with allegations of serious misconduct likely to require more detailed investigation. The extent of the investigation does not have to be forensic but should be whatever is reasonable in the circumstances to ensure that the relevant facts are established. This will allow the employer to properly put its case to the employee so that the employee understands the case they have to answer. If the allegations relate to the honesty and integrity of the employee, and they are likely to lose their job if the allegations are proved, a higher standard of investigation is expected. This should include pursuing lines of enquiry which may prove the employee's innocence, as well as those which may establish their guilt.
5. Keep detailed notes
Detailed notes of all witness meetings conducted during the investigation process, including those with the accused employee, should be made and kept before memories fade. Ideally the notes should be signed by the witness to confirm they are an accurate reflection of what was discussed.
6. Remind witnesses of their duty of confidentiality
Employers should be mindful of the need to maintain confidentiality throughout the investigation process. The investigating officer should explain to witnesses that they should not discuss the investigation with colleagues or third parties and that they need to keep the fact of the investigation confidential.
7. Consider if the employee should be allowed a companion
There is no statutory right for an employee to be accompanied at an investigation meeting. However, employers should be mindful of what is stated in their disciplinary policy, particularly where this has contractual status. Employers should also remember that they have a duty to make reasonable adjustments where a disabled employee is placed at a disadvantage and this duty may arise in an investigation either in relation to the accused employee or any witnesses. It may well be reasonable for an employer to allow a disabled employee to be accompanied or to change the location or arrangements for an investigation meeting to alleviate any disadvantage.
8. Remember it is not a disciplinary hearing
The investigation is purely the means by which evidence is obtained to establish the facts of the case. It is not a disciplinary hearing. If the employee admits their guilt during the investigation process the employer must still invite the employee to a disciplinary hearing at which they can present their case and any mitigating factors before any appropriate disciplinary action is taken.
9. Take care not to breach the implied duty of trust and confidence
It is important that the investigating officer does not use the investigation as a fishing expedition in order to obtain any and all information about the employee by whatever means. Any such behaviour is likely to undermine the implied duty of trust and confidence between the employer and the employee.
10. Always recommend next steps
At the end of the investigation, the investigating officer should review the evidence collated and make a recommendation based on what has come out of the investigation process. It is a good idea for the investigating officer to document their thought process and the key evidence supporting their decision in case they are required to give evidence on this at a subsequent tribunal hearing. It may be that there is insufficient evidence to justify taking any further action and if this is the case this should be confirmed to the employee. If the investigating manager believes there is sufficient evidence to proceed the employee should be invited to a disciplinary hearing.