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Most employers are aware that disciplinary action requires a form of procedure to be followed. Conversely, the need for a proper investigation is often overlooked. Many employees will jump straight into arranging a disciplinary before giving the matter full consideration. The investigation stage is vital and is often the key to a fair and objective procedure. It helps to ensure that the essential facts of the matter are established before a decision is made. If an employer disciplines or dismisses an employee without completing a reasonable investigation, this increases the likelihood of an unfair outcome which will leave an employer exposed to Tribunal claims.
In recognition of this important area, ACAS has recently produced helpful guidance on conducting workplace investigations. This overview highlights some of the key parts of that guidance along with our own opinions.
What is an investigation and when is it required?
An investigation is a fact finding exercise. An investigator will collect all the relevant information pertaining to a matter to assist the employer to make an informed decision. An investigation may be advisable in a whole host of situations but is most commonly needed when an issue arises that could lead to disciplinary action against an employee. It will also be relevant to grievances or other complaints and allegations that may be raised within the workplace. Following these general principles will help you deal with employee issues fairly and consistently.
Every investigation will be different but there are a number of common themes that arise:
- Formal or informal
Is a formal investigation necessary or can it be dealt with informally? If a “quiet word” is all that is needed then sometimes it is better to avoid undue formality. However, if there is a good chance that disciplinary action will be considered, a formal process should be adopted.
- Act promptly
An employer should act promptly to avoid any unnecessary delays as memories can fade. Delays can also give the perception of an unfair process or that you are not taking the matter seriously.
Usually an investigation should be kept confidential to avoid any evidence being tainted by witnesses discussing or agreeing the facts. This also helps to ensure that employee morale is not adversely affected. The need to maintain confidentiality should be clearly explained and employees should be made aware that if they breach rules on confidentiality that this could in itself become a disciplinary matter.
- Suspension or other temporary measures
Many investigations can be conducted without taking any special measures but occasionally it may be necessary to consider transferring or suspending an employee for the duration of the investigation. The ACAS guidance warns that “Suspension with pay should only be used after careful consideration, as a last resort and should be reviewed to ensure it is not unnecessarily drawn out.” You should make it clear that it is a temporary measure and that there is no assumption of guilt. Some of the examples given as to when it may be relevant include where: –
- working relationships have broken down.
- the employee could tamper with evidence.
- there is a risk to an employee’s health or safety.
- property or the business of the organisation may be damaged.
- Criminal matters
Depending on the subject matter, a criminal investigation may also be required and an employer may need to consider whether or not to involve the police. In these circumstances, you may need to put your investigation on hold until the criminal proceedings have concluded to avoid any possible prejudice to those proceedings. In this case you should take specific advice from a solicitor as to how to proceed.
Choosing an investigator
An investigator should be fair and objective. The fact finding exercise should establish the relevant facts of the matter with a view to reaching a provisional conclusion on what did or did not happen. Employers can often forget that an investigator should look for evidence that both supports the allegation and contradicts it. It is not the investigator’s role to prove the guilt of any party but to investigate if there is a case to answer.
In disciplinary situations, there should ideally be:
- one person to deal with the investigation;
- a second person to make the decision at a disciplinary hearing. This person should be more senior than the investigator; and
- a third person to deal with the appeal. This person should be more senior than the decision maker.
These people should not be otherwise involved in the matter and should be impartial and objective.
Often when the investigation relates to a grievance the roles of investigator and decision maker can be combined. If in doubt please contact us for specific advice on your case. The most important consideration is that the investigator is able to act fairly and objectively without any influence from others.
It may be necessary to invite relevant employees to an investigation meeting so that they can be interviewed to establish the facts. An investigation meeting must never turn into a disciplinary meeting. When disciplinary action seems necessary a separate meeting must then be arranged.
There is no statutory right to be accompanied at an investigation meeting but many employers will allow this as a best practice step as it can make employees feel more comfortable about the process adopted.
Prepare questions in advance to ensure that the key areas are covered. Use a combination of open and closed questions, and ensure that the investigator listens fully to the interviewee as this will help to gather as much evidence as possible. The ACAS guidance provides further helpful advice on interview techniques.
Often employees can be reluctant to provide evidence for an investigation due to the fear of reprisal from their fellow colleagues. If this occurs, an employer should provide reassurance to the witness that any such behaviour will be treated extremely seriously. You should avoid anonymising statements save for in exceptional cases where there is a genuine need to protect the witness.
In all cases an employer should take detailed notes of all investigation meetings.
Witness statements are usually produced by obtaining a signed copy of the notes from the investigation meeting as this is the easiest way to reflect the evidence given by the witness. If the facts are very simple it may be possible to ask the witness for a statement without an interview. Other evidence may be relevant to establish the facts of the matter such as timesheets, computer or phone records, or any evidence that may help to support or disprove an allegation.
Once the facts are established an investigator should produce an investigation report to explain their findings. Whilst this is not strictly necessary it can help to show the investigator’s considerations and the outcome in a clear way. The conclusion of the report should outline the investigator’s recommendations and enclose all supporting documents and witness statements so that the decision maker can consider everything before reaching their own decision. Ideally an investigator should restrict their recommendations to only suggesting whether any further action may be necessary or beneficial rather than predicting or prejudging the outcome of a grievance or disciplinary hearing.
Of course the depth of an investigation will vary with each matter and the size of an organisation but it is clear that a proper investigation will undoubtedly strengthen any subsequent decisions that are made and make it much more difficult for those decisions to be challenged at a later date.
If you require further advice on this or any other matter, please do not hesitate to contact Anna Bunting or a member of the Employment Team.