Organisations are coming under increasing scrutiny by employment tribunals in respect of action taken during the investigation stage of the disciplinary process. What makes an investigation reasonable and how can this be achieved in practice?
Christmas has been and gone, New Year resolutions are hanging in the balance and rumours are swirling after the office Christmas party. It must be January.
With that in mind, there is surely no better way to kick off 2020, and the first article in our monthly ‘How to’ guides for effective employee management, than with some guidance on the first step of the disciplinary process – the investigation stage.
Employment tribunals are increasingly making adverse findings against organisations on the basis that a dismissal was based on an incomplete or flawed investigation process.
Although typically the investigating officer will not provide witness evidence at a tribunal claim for unfair dismissal, because their report forms the foundation of the management decision to dismiss, it is crucial that the process starts off the right way if ultimately that decision to dismiss is to be judged as fair.
Who should be the investigation officer?
Usually, it will be the alleged perpetrator’s line manager. Sometimes, however, this will not be appropriate as the line manager may be involved (e.g. if they are a witness), in which case, someone of a similar level but unconnected to the incident(s) should carry out the investigation.
Larger organisations that are blessed with lots of managers should ensure that it has three relevant people (investigator, disciplinary manager, appeal hearer) in mind at the start of the investigation, with each being more senior than the last.
What should an investigation look like?
Unlike a disciplinary hearing, the investigation stage is purely a fact-finding mission, and the investigating officer should obtain all evidence that is relevant to the allegations.
Typically this will be speaking to the alleged perpetrator and any witnesses, and making notes of the conversation. However, depending on the circumstances, the evidence could include emails, letters, phone records, CCTV, paper files, diaries, notes and messages. If they are relevant, they should be considered.
An investigation should not be a paper exercise. As well as speaking to the people involved, the investigator should, if possible, go and visit the location where the incident took place. If the allegation is that a retail employee is stealing from the tills, go to those tills. Is it feasible that the witness could have seen this person take the money from where they were standing? How busy is the shop at the time the incident took place? It is hard to come to conclusions about this while sitting behind a desk.
The investigator should be an unbiased, impartial observer of the facts and information. If there is a case to answer, this information goes to the disciplinary manager.
The investigation does not have to be so forensic and watertight that it could be used in a criminal court – the burden of proof for a fair dismissal is on the balance of probabilities (above 50%) rather than beyond reasonable doubt (think 99.9%). The question for the investigator to answer to themselves is, on the evidence, should the matter proceed to a disciplinary hearing?
How should meetings be carried out?
Despite the temptation for the meeting to be done as an ambush, investigation meetings are part of the formal disciplinary process and should be treated as such. An employee who is the subject of an investigation should ideally be given at least 48 hours’ notice and be notified by letter of the allegations, along with a copy of any evidence that has already been gathered. Although there is no statutory right for the employee to be accompanied at this stage, it may in certain situations be advisable to allow the employee to bring a fellow employee or trade union representative along with them, for example where the employee may struggle to follow proceedings because English is not their first language.
At meetings with either the alleged perpetrator or any witnesses, the investigating officer should:-
- Take notes;
- Ask open questions (“Could you tell me in your own words what happened on 15 December?”) and closed questions (“What time was that? Where were you when you saw this?”);
- Not put words in the witness’ mouth;
- Find out who else could be a potential witness;
- Look for evidence of innocence, as well as evidence of guilt.
Organisations often have difficulties where there is a potential witness who is reluctant to attend a meeting or who will only say what they know on the condition that their name is kept out of the matter, for whatever reason.
Unless there is a clear and obvious threat of violence, retributions or reprisals, redacting or anonymising witness statements is viewed with great disdain by the Employment Tribunal, on the basis that it does not allow the accused to fully understand the case against them. As a general rule, the organisation should stand firm in its request for the witness to help it by putting their name to any evidence they give.
After concluding all the relevant interviews and gathering all of the other evidence, the investigating officer should arrange the documents in date order and compile an investigation report setting out their findings and whether there is a case to answer. This makes everything easier for the people involved later on in the process, whether that it disciplinary manager, appeal hearer, solicitor, barrister or judge! If there is a case to answer, it will then be for the disciplinary manager to decide if the case is made out and what, if any, action is appropriate.
Conducting a thorough and reasonable investigation into allegations of misconduct greatly increases an organisation’s prospects of successfully defending an unfair dismissal claim, by providing a firm foundation on which to build a disciplinary case. Additionally, taking the time to run a proper investigation can save a great deal of time, money and stress further down the line.
Next month we will set out how to run a disciplinary hearing, the next stage in the process.