Carrying Out Workplace Disciplinary Investigations
Getting investigations right is vital for all employers. Here are some key considerations on carrying out workplace disciplinary investigations
When Investigations Arise
Workplace investigations are common and typically arise in response to disciplinary or grievance issues. An investigation is conducted to determine the facts and to ensure that everyone involved is treated fairly. It involves gathering evidence from all parties to help the employer understand the situation and decide on the appropriate next steps. In this blog we provide an introduction to some of the main issues arising when carrying out an investigation into possible misconduct by an employee.
Preparing for the Investigation
At the beginning of the disciplinary investigation, the employer must define the investigation’s purpose and scope, often referred to as the ‘terms of reference.’ These terms outline the investigation’s objectives, the investigator’s role and responsibilities, what aspects the investigation will cover, and any relevant policies the investigator should adhere to. They should specify how the investigator’s findings will be presented (such as in an investigation report), to whom the findings will be reported, and who should be contacted for additional advice or if any unforeseen issues arise. This could include HR or a line manager, for example. The remit would note that the investigator’s role is not to decide the employee’s guilt or innocence, but to decide whether there is a “case to answer” for misconduct, which should be considered at a separate disciplinary hearing.
Appointing an investigator
For more straightforward matters a line manager or HR staff can usually handle the investigation. For serious or complex issues like potential gross misconduct, appointing a more senior or experienced person is advisable. In some complex cases, an external consultant may be used for the investigation, but this decision should balance fairness with cost-effectiveness and efficiency.
Employers should carefully select who will manage the investigation, keeping in mind who will handle any subsequent stages of the process if needed. For instance, the investigator should not also be the person conducting any potential future disciplinary hearings (except where, in a small organisation, this is unavoidable). It is sensible, as a very first step in the process, to plan ahead at the outset and decide who will be the investigator, the disciplinary chair (if required) and the appeal chair.
Consideration should be given to whether to suspend the employee pending investigation, but this should only be done if necessary. Suspension is a blog topic in itself!
Witnesses
Witnesses can provide crucial evidence for disciplinary cases. Investigators should usually hold meetings to gather information, which should be noted and signed by the witness. Witnesses should be asked to consent to sharing their information/disclosing their statements, and should be told that confidentiality must be maintained in relation to the investigation.
Where a witness wishes to remain anonymous, this should be carefully considered, balancing the witness’s wish to be anonymous against fairness to the other parties. It is sensible to take legal advice about this difficult issue. Where a witness remains anonymous, this may hamper the ability of the “accused” employee to challenge the evidence.
Carrying out the Investigation
It is crucial for the investigator to remain fair and objective, adhere to the employer’s policies, and gather comprehensive, balanced evidence without aiming to prove guilt. Confidentiality is key throughout the process. The investigation should be conducted promptly but thoroughly, with timelines clearly set out by the employer. If more time is needed, it should be communicated to the employee, keeping clear records of such communications.
Physical evidence, such as emails, records, and CCTV footage, should be collected in line with the employer’s policies and legal requirements, respecting privacy rights.
The “accused” employee and those required as witnesses should receive a written invite to the meeting setting out its purpose and other relevant details such as time, location and the capacity in which they are required to attend.
Employees have the legal right to be accompanied by a colleague, a certified trade union representative, or a union official during a formal disciplinary hearing. This does not extend to an investigation hearing but the employer’s policy may give employees this right, or the employer may decide to allow it in the interests of a fair process. Reasonable adjustments should be made for disabled employees, possibly including a support person if required at an investigation hearing.
If an employee cannot attend an investigation meeting, for good reason, it should be rescheduled or adjusted at least once. It may be appropriate to seek medical advice as to when an employee will be fit to attend, if ill health is the reason for non-attendance.
If necessary, it may ultimately be possible to proceed with an investigation without the employee’s attendance at a meeting, with all available evidence being considered; but this should be handled very carefully.
Next steps
If more information is needed, the investigator can revisit the case, ensuring it is done promptly and communicating any delays to the employee. After gathering sufficient information, a written investigation report should be prepared. Recommendations may include formal action, informal action, or no further action, and may lead to the employee being invited to a separate disciplinary hearing (and the employee would, before that hearing, be issued with the investigation report and supporting evidence).
What can go wrong
Investigations are an integral part of any disciplinary process and have a significant impact on any subsequent steps taken by the employer. If the employer does not carry out a reasonable investigation, any decisions they make in the disciplinary case are likely to be flawed which could risk legal action including claims for unfair or constructive dismissal.
Some top tips for a fair investigation process
- Ensure impartiality and fairness by allocating an unbiased investigator who has had no direct involvement with the case and ensure that procedures are applied consistently across all investigations to avoid any perception of favouritism
- Maintain confidentiality at all times to protect the privacy and interests of all parties. Ensure that all information is shared on a ‘need to know’ basis to prevent rumours emerging and to protect the integrity of the investigation
- Thoroughly gather all relevant facts, documents and evidence and conduct comprehensive interviews with witnesses.
- Keep comprehensive records at all stages of the investigation including interviews, evidence gathered and the decision-making process.
- Adhere to your organisations policies and procedures and review the ACAS guidance on conducting workplace investigations. Due to the potential risks that can arise when there are shortfalls in the process, it is advisable to take legal advice prior to carrying out investigations.
- Ensure that the investigator appointed has been trained in carrying out workplace investigations and is aware of the organisation’s policy and the relevant legal considerations.
- Following the investigation, implement appropriate disciplinary actions if necessary and any other follow up actions.
- Consider whether any regulator needs to be notified of the issues, and if so at what stage.
If you require further guidance on this issue, or any other employment law matters, our team of experienced employment lawyers is here to assist.
This update contains general information only and does not constitute legal or other professional advice.
Caroline Carr, Partner & Accredited Specialist in Employment Law: cac@bto.co.uk / 0141 221 8012 / Connect with Caroline on LinkedIn
Kimberley Tochel, Trainee Solicitor: kto@bto.co.uk / 0141 221 8012 / Connect with Kimberley on LinkedIn
