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    • Conducting disciplinary investigations legally and ethically
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    Conducting disciplinary investigations legally and ethically

    Harry Posted on

    Conducting a thorough and objective investigation is an important part of ensuring a fair disciplinary process. This will be vital in situations where misconduct results in dismissal; because resulting unfair dismissal claims are likely to succeed where the investigation is inadequate.

    Who should conduct the investigation?

    This person must be someone more senior than the accused employee (but note that more senior people may be needed for the hearing and/or appeal) and must be unrelated to the allegations.

    Can the investigator also preside over a disciplinary hearing?

    Not unless your business is particularly small or the defendant is particularly senior and there is no one else to do it. Acas code ‘If practical, different people should conduct the investigation and the disciplinary hearing,’ he says.

    Even if an employee admits misconduct, is an investigation necessary?

    Yes. Although it is unlikely that the investigation will take that long, the investigation may reveal mitigating circumstances or cast doubt on the veracity of a confession.

    What is the role of the researcher?

    First, to gather and evaluate evidence about what happened (or didn’t happen). They must establish the facts by citing available evidence and also determine what cannot be proven. The investigator must be open-minded, objective and balanced, looking for evidence that supports and weakens the case against the accused employee. They should not determine the crime or sanction.

    How long should an investigation take?

    This is fact specific and will be greatly influenced by the nature and seriousness of the allegations, the volume and complexity of the evidence available, the number of relevant witnesses and the need to maintain confidentiality. Essentially, the more serious the allegations or the more people/evidence involved, the longer the investigation will take.

    However, this must be done ‘without unreasonable delay’ (Acas code) and within the timeframes specified in the employer’s disciplinary policy. Failure to complete a fair and thorough investigation in a timely manner may result in an unfair conduct of the investigation process and any subsequent dismissal.

    What should an investigation include?

    Again, this is very fact specific. First of all, the allegations must be taken into account and all relevant evidence must be sought. This may include speaking to the employee making the accusations (if relevant) and any witnesses, reviewing CCTV footage, reviewing documents/emails/call recordings etc. This may include making copies.

    Once collected, the next step is to talk to the accused employee. For an investigation to be reasonable, the allegations must be clearly presented to the employee, along with all evidence, and the employee must be given sufficient time to formulate a response. The employee must be notified of the meeting and preparation time in advance. Therefore, it almost always makes sense for the investigator to hold a disciplinary hearing with the accused employee (sometimes more than one investigative meeting may be needed).

    Does the employee have the right to accompany the disciplinary investigation meeting?

    No, unless the disciplinary policy provides otherwise or is needed as a reasonable accommodation for the disability. However, the employer may allow an employee who can assist the parties at the meeting to bring a companion. Clear rules/limits regarding the companion’s role should be established.

    What happens if the employee under investigation refuses to report to work?

    This situation should be investigated by the researcher; Is there a legitimate reason or are they just not cooperating? The employer will need to consider whether it can continue the investigation without the employee’s input. It may be appropriate to invite the employee to take a witness statement rather than attend the investigation meeting. All attempts to interact with the employee should be documented so that there is an appropriate paper trail. Ultimately, the employer may decide to proceed, but the investigation must be particularly thorough.

    Given that the Labor government plans to introduce unfair dismissal protection for all workers from day one, it is vital that employers ensure their managers receive appropriate training and are familiar with the disciplinary hearing process.

    Lynsey Blyth is a partner at Michelmores

    Harry
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