Conducting a disciplinary investigation

Blog | Employment
Published: 2nd February 2022
Area: Corporate & Commercial

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A disciplinary investigation is necessary when an employer needs to look further into the conduct of an employee, or to ascertain the facts surrounding an incident or allegation, prior to taking disciplinary action. This article examines how to conduct an investigation.

The need to conduct a disciplinary investigation

Even where an employee has already admitted that they have done something wrong, in many cases, it will still be necessary to conduct an investigation in order fully to understand the circumstances and ensure that everyone involved is treated fairly. It can also assist the employer in deciding its next steps, and provide valuable evidence, both against the employee and in mitigation, for a disciplinary hearing.

However, it is not always the case that a disciplinary investigation will result in a disciplinary hearing. The aim of the investigation is to establish whether the employee has a case to answer.

By following a fair, transparent and consistent process, managers can reduce the risk of unfair dismissal, breach of contract and discrimination claims.

The ACAS code of practice

The ACAS code provides practical guidance to employers and employees on the fair conduct of disciplinary procedures for misconduct or poor performance and this is the minimum standard that the law expects. If a disciplinary case reaches an employment tribunal, judges will look at whether the employer has followed the ACAS Code of Practice in a fair way.

The key principles of fairness outlined the ACAS Code are:
  1. Employers and employees should raise and deal with issues promptly and without unreasonable delay.

  2. Employers and employees should act consistently.

  3. Employers should carry out necessary investigations, to establish the facts of a case.

  4. Employers should inform employees of the basis of the problem and give them an opportunity to "put their case in response" before any decisions are made.

  5. Employers should allow employees to be accompanied at formal meetings.

  6. Employers should allow an employee to appeal against any formal decision made.

So what are the key components of a fair investigation?
1

Make sure the investigating officer is appropriate - The most appropriate person is usually the employee’s immediate line manager. However, this will be dependent upon the facts of each case. If the line manager is a potential witness to the alleged misconduct, it would not be appropriate for them to be the investigator. In this case, the employer can appoint a member of the human resources team or another line manager. An alternative is to commission an external specialist in order to preserve the objectivity and integrity of the investigation. Please do contact us if this is something we can help with.

2

Consider whether suspension is necessary – Whilst it should not be an automatic reaction, employers should consider whether it is appropriate to suspend an employee on full pay. For example, it may be appropriate where:

  • allegations against the employee involve serious misconduct;
  • where there is a potential threat to the business or other employees;
  • where it is not possible to properly investigate the allegation if the employee remains at work (for example, because they may destroy evidence or attempt to influence witnesses); or
  • where relationships at work have broken down.
3

Gathering evidence and record keeping – Evidence can take many forms including emails, telephone recordings and meeting minutes. It is important that the employer keeps records of the investigation to show that it was handled fairly and thoroughly. Record-keeping is also important to meet the employer’s obligation to provide the employee with copies of all evidence that it intends to rely on in advance of any disciplinary hearing.

4

Witnesses – Where a witness is reluctant to give evidence, the reasons for this should be explored. The employer can and should look to reassure them and encourage them to give evidence. However, applying excessive pressure where a witness is very reluctant is risky because this could of itself give rise to a claim for constructive unfair dismissal, for example.  It may be possible to give some reassurances to witnesses about the confidentiality of their involvement, but care should be taken not to over-promise in this respect.

5

Investigatory interview – It is important to keep in mind that investigation meetings are relatively informal and are not disciplinary hearings. The purpose is to enable the investigator to gather evidence. There is also no legal right to be accompanied by a colleague or trade union rep at this meeting, however, notes should be taken. Such an interview can also be undertaken remotely if necessary.

6

The outcome of the investigation - Once an investigating officer has gathered the evidence, they will need to decide if there is a case to answer and if so, the matter would then proceed to a disciplinary hearing. A key aspect of the investigating officer’s role is to prepare a report summarising the investigation, the steps they have taken, their findings and recommendations. This will assist the disciplinary panel in carrying out a disciplinary hearing.

This is a brief overview of the key aspects of conducting a disciplinary investigation but the precise nature and extent of any investigation will depend on the circumstances of the case. If you need any advice or assistance in conducting an investigation, please do get in touch.

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Lubna is an experienced employment solicitor who advises a wide range of businesses on their HR issues. Lubna also specialises in tribunal litigation.

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