12/02/2020

Disciplinary investigations can cause managers a great deal of stress and confusion. What should be a straightforward process can take many twists and turns as matters progress, leaving managers questioning how they can ensure they are carrying out the investigation in a fair and reasonable way.

I have advised many employers on how to deal with disciplinary investigations and have come up with some key points to help managers navigate the process in a way that stands up to scrutiny.

1. What is the allegation?

The first matter is to decide exactly what the allegation is and where it falls within your disciplinary policy.

Is it a matter of conduct or poor performance? Have they allegedly stolen something, or have they missed something crucial in an inspection? Is it negligence or deliberate?

You must be clear on the allegation and whether this is misconduct or gross misconduct. Write down the allegation. This is what you will investigate, and it is what the hearing chairperson (if you get to a hearing) will decide upon.

Always keep an open mind though as you can amend or add to the allegation as the investigation continues. You just need to be sure that you are finding evidence that proves or disproves the allegation and not some other random point that the employee won’t be expecting.

2. To suspend or not to suspend?

Most employers have the power to suspend in their disciplinary policy and sometimes even in their contract of employment. When deciding if someone should be suspended you need to consider if it is actually necessary.

Suspension can cause tension and while it is not intended to be a form of sanction against the person, it inevitably will have an effect and other staff will talk.

Suspension is the last resort, but it should be considered if there is a risk to the witnesses, to evidence or when the matter is sufficiently serious that it’s just better than the person remains at home while the case is dealt with.

Suspension is usually with full pay but one point to consider is whether your policy on the suspension will continue to pay the person if they send in a sick note, for example, for stress.

You need to check your position on this because if you don’t state the point clearly in your policy, and you tell the person they are suspended on full pay until the disciplinary is concluded, then even if they send in a sicknote and refuse to attend an interview and hearing until they are ‘well’, they should be paid in full because the suspension supersedes the sickness absence.

3. Interview witnesses – what are you going to ask them?

Before starting interviews, you should make a note of the questions you want to ask. I suggest you type out an interview sheet that states who you are, a space for the witness’s name and the note taker. Then you should type out your questions with space to handwrite the answers. You can type up a statement later or just rely on the hand-written answers but there is no argument over the wording of questions.

In addition, you should ask everyone the same questions and don’t presume they won’t know the answer. Of course, some people will need more questions and if new ones arise during the interview, you should write them down word for word, along with the answer.

You should get signed statements from the witnesses and, unless there is clear evidence of a fear of reprisals from the accused person, the statements will not be confidential.

The tribunal has mixed views on whether statements should be anonymous or not. I suggest they shouldn’t be unless, again, there is clear evidence that the person has a genuine fear about their name being known to those involved.

That said, no one should worry about bad treatment for reporting wrongdoing. That in itself is detrimental treatment, which would be a dismissible offence for the bully.

4. Do you interview the employee subject to the allegation?

This depends entirely on the circumstances. If the person has been seen on CCTV punching a colleague there is little value in interviewing the person. The hearing itself will be the place for the person to explain themselves as it is clear they did punch someone, but they will be trying to excuse this behaviour.

Where the allegation is something less clear cut like the person has failed to carry out an important task, it would be more reasonable to interview them about it and they may have a perfectly reasonable explanation which means there is no need for a hearing.

Interviewing the accused can be vital in deciding whether there is a case that needs to be answered in a hearing but there are times where the evidence speaks for itself.

5. How do you deal with the evidence you collect?

During the investigation, you should not only interview everyone who was there and anyone else whose name comes up during the process, but you should also consider checking email accounts (sent, received and deleted), CCTV and even WhatsApp groups!

Any system or record you have which could show evidence of guilt or innocence should be checked.

However, there is no requirement for a forensic investigation, so you don’t need to spend hours going through call logs or such. You need to see if there is evidence that shows ‘on the balance of probability’ something did or didn’t happen here, which a hearing needs to determine.

Once you have looked under every stone you can think of, you need to prepare a report. This should be impartial and not suggesting the guilt of the person under investigation.

You should not be emotive. This is a record of the investigation into the allegation. Who said what, who saw what, what the person said (if the employee themselves was interviewed), what was on the CCTV, the emails you have found and so on. Copies of all documents to be relied on should be provided as appendices.

You should conclude with a summary which states there is a case to answer or there isn’t. You should shy away from recommending any sanctions as that is the decision of the chairperson and they should not be influenced by the investigator.

Keep in mind that your report and copy evidence will all need to be sent to the employee too. They will review it before attending a hearing (and if there is a later claim, the employment tribunal judge will review it too.)

Disciplinary investigations are an important part of a fair disciplinary procedure. The key is to take the time to establish the facts. By making sure the employee facing the allegations feels fairly treated, you could be sparing yourself an unfair dismissal claim.

If you need help with an investigation, we can provide a full investigations pack, including templates, that you can use time and again for a cost of £550+vat. Call Laura Franklin at Beswicks Legal on 01782 205000 or email laura.franklin@beswicks.com for more details.