It will come as no surprise to hear us champion the importance of getting a disciplinary procedure right, as it is the only way to avoid a decision by a Tribunal that a dismissal is procedurally unfair. However, in our experience, the investigation stage is often overlooked or rushed through because the business focus is on the disciplinary hearing itself.
We know from the legislation, ACAS Code and case law, however, that the investigatory stage is equally important, so here are some top tips for getting that part of the process right:
Who should deal with the investigation?
The investigator needs to be sufficiently senior to be considered to have the necessary authority to conduct the investigation. You need to ensure that the investigator is completely independent, that there will be no conflict of interest, and that he or she is not needed as a witness in the process. You also need to consider who will be available and appropriate to carry out any subsequent disciplinary and potential appeal, so as to avoid running out of layers of management by that point.
What format should the investigation take?
The obligation on an employer is to conduct an investigation that is reasonable in the circumstances, so this will vary from case to case. Some investigations may be very document heavy, and others will require much more witness evidence. However, it is always recommended to have at least one meeting with the employee who is under investigation, in order to give him or her opportunity to put forward an explanation of events. Finally, whatever format it takes, the investigation should be conducted promptly.
Should the employee be suspended while the investigation is carried out?
Suspension can often be a knee jerk reaction when disciplinary offences have been alleged in respect of an employee. However, in a case last year (Crawford v Suffolk Mental Health Partnership NHS Trust) the Court of Appeal were highly critical of such mentality. In that case, a Judge made it very clear that if an employer were not to give considered thought as to whether suspension was necessary in the circumstances and was to simply suspend an employee as part of its standard process, this could amount to a breach of the duty of trust and confidence towards the employee. It is therefore important to carefully consider whether suspension is reasonable and necessary on a case by case basis.
How should you deal with reluctant witnesses?
If faced with witnesses who wish to remain anonymous, it is necessary to test their evidence as far as possible. As a first step you should try to understand their motives for wanting their identity to be kept confidential. You should also look for corroboration from other sources, whether that is documentation or additional witnesses. In order ensure that the process remains fair for the employee under investigation, there must be enough evidence to put to them, so that they understand the case against them. Often, the interests of both individuals is balanced by providing a witness statement to the employee which is anonymous and blanks out information to the extent necessary to protect the witness’s identity.
What notes should be made of the investigation meeting?
It is always important to keep thorough and contemporaneous notes of any investigation meetings. The best way to achieve this is usually to have an additional person present, purely as a notetaker, so that the investigator can focus on the questions that they are asking and the answers that are being given. Difficulties can emerge if you try to agree the notes of the meeting with the employee under investigation as this can often lead to substantial delay and dispute. In order to avoid this, simply agree that the employee can make his or her own written record of the meeting and that you are happy to exchange those notes with him or her, but will not be asking for agreement to your notes.
Do you need to carry out any follow up?
You should satisfy yourself that you have been able to collate the facts as far as possible and are able to make a decision as to the next steps based on the information you have. If any points are raised throughout the investigation meetings that need to be put to other witnesses or the employee under investigation, in order to give them the chance to respond, make sure that you carry out follow up meetings or calls to specifically address these points. If, when you come to produce your report, you realise that there are any gaps in the facts or areas where you need further information, it is a good opportunity to go back and request such clarification at this early stage.
How should you draw together your conclusions?
It is good practice to compile an investigation report, which can be handed over to the disciplinary manager, should you decide that further action is necessary. The report should include a summary of the circumstances that led to the investigation being initiated and also explain the process that you followed, including reference to who you spoke to and what documents you reviewed. You should conduct a quality assessment of the evidence that you have obtained and then, based on that evidence, you should set out your findings and draw your conclusions, explaining why you believe that the matter should or should not move forward to a disciplinary hearing. You should append to the report all meeting notes and documents that have been reviewed, so that everything of relevance is available for the disciplinary manager to easily review, if necessary.