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    • Conducting disciplinary investigations legally and ethically
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    Conducting disciplinary investigations legally and ethically

    Online Niel Posted on

    Conducting a thorough and objective investigation is a key part of ensuring a fair disciplinary process. This will be essential where the misconduct ends in dismissal, as any resulting wrongful dismissal claim will succeed where the investigation is inadequate.

    Who should lead the investigation?

    It should be someone older than the accused employee (however, note that older people may be needed for a hearing and/or appeal) and someone not involved in the allegations.

    Can the investigator also chair the disciplinary hearing?

    Unless your business is particularly small or the accused is particularly senior and there is no one else to do it, no. The Home code states that “where possible, different people should conduct the investigation and disciplinary hearing”.

    Is an investigation required even when an employee has admitted wrongdoing?

    Yes. While the investigation likely won’t take that long, the investigation could uncover extenuating circumstances or simply cast doubt on the veracity of a confession.

    What is the role of the investigator?

    First, to gather and consider evidence about what happened (or didn’t). They should establish the facts by reference to the available evidence and also identify what cannot be established. The investigator should keep an open mind and be objective and balanced, looking for evidence to support and weaken the case against the accused employee. They should not determine guilt or penalties.

    How long should an investigation take?

    This is specific and will be strongly influenced by the nature and seriousness of the allegations, the volume and complexity of the available evidence, the number of witnesses involved and the need for confidentiality. Essentially, the more serious the allegations or the more people/evidence involved, the longer the investigation is likely to take.

    However, it should be carried out “without unreasonable delay” (Acas code) and within the timescales set out in the employer’s disciplinary policy. Failure to complete a fair and thorough investigation in a timely manner could render the investigation process and any subsequent dismissal unfair.

    What should an investigation involve?

    Again, this is very fact specific. Initially, the allegations should be considered and all evidence related to them should be sought. This may involve speaking to the employee making the allegations (if applicable) and witnesses, reviewing CCTV footage, obtaining copies of documents/emails/call recordings etc.

    Once gathered, the next step is to speak with the accused employee. For an investigation to be reasonable, the allegations must be clearly presented to the employee, along with all the evidence, and they should be given sufficient time to formulate a response. The employee must receive advance notice of the meeting and time for preparation. Therefore, it almost always makes sense for the investigator to hold a disciplinary inquiry meeting with the accused employee (sometimes more than one inquiry meeting may be necessary).

    Does an employee have the right to be accompanied to a disciplinary hearing?

    No, unless the disciplinary policy requires it or it is necessary as a reasonable adjustment for a disability. However, employers may allow the employee to bring a companion if the companion can assist the parties to the meeting. Clear rules/boundaries should be established regarding the role of the companion.

    What happens if the investigated employee refuses to hire?

    This should be explored by the investigator – is there a legitimate reason or is he not cooperating? The employer will need to consider whether it can proceed with the investigation without the employee’s input. It may be appropriate to invite the employee to give a witness statement instead of attending an investigative meeting. All attempts to engage with the employee should be documented so that there is a proper paper trail. Ultimately, the employer may decide to simply move on, but the investigation should be particularly thorough.

    With the Labor Government planning to introduce unfair dismissal protection for all workers from day one, it is essential that employers ensure their managers receive adequate training and are familiar with the disciplinary inquiry process.

    Lynsey Blyth is a partner at Michelmores

    Online Niel
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