Investigations are key to any disciplinary process. How can employers ensure that investigations are conducted fairly and thoroughly and don’t lead to unfair dismissal claims later on? Lee-Anne Crossman looks at the issues and provides helpful tips to ensure that the disciplinary investigation is conducted effectively.

An employer considering the possibility of dismissing an employee by reason of misconduct will have to take into account a number of issues in order to ensure that any resulting dismissal is not unfair. Specific forms of misconduct will raise their own particular issues, but here we focus on the investigation.

The aim

Ultimately, an employer must be able to show that it has a genuine belief that the employee is guilty. This should be based on reasonable grounds, after having carried out as much investigation into the matter as is reasonable in all the circumstances of the case. A good investigation is fundamental, while a flawed or incomplete investigation can undermine the entire disciplinary process and leave employers vulnerable to claims for unfair dismissal.

Achieving the aim

The extent of the investigation may vary. For example, where an employee admits wrong-doing, a less extensive investigation will be required as compared to an employee who denies wrong-doing. That is not to say that no investigation at all is required where there is an admission of guilt.

There are no ‘hard-and-fast’ rules as to the level of inquiry the employer should conduct into the employee’s suspected misconduct. It will depend on the particular circumstances - including the nature and gravity of the case, the state of the evidence and the potential consequences of an adverse finding to the employee.

The right steps in the right order…

Overall, the requirement for an investigation to take place prior to any disciplinary action is critical if an employer is to ensure it does not fall foul of the principles of fairness established by case law or the Acas code.

It will often be the case that, during the investigation, perfectly plausible explanations emerge and the disciplinary process is discontinued without a hearing. This is why it is of vital importance that, even in cases of apparently ‘obvious guilt’, an employer should always investigate rather than launch straight into a disciplinary hearing or (worse) go straight to dismissal.

Here are some points for an investigating officer to consider when carrying out their investigation:

  1. What’s the problem? Clearly identify the allegation to be investigated.
  2. Independence and impartiality - ensure the investigating officer is independent: they should not have any previous involvement in, or knowledge of, the matter.
  3. Open mind - the investigating officer should keep an open mind. Their task is to look for evidence which weakens, as well as supports, the employee’s case; it is a fact finding exercise.
  4. Swift investigation - ensure the investigation is commenced and concluded without unreasonable delay; it is important to establish the facts and put the allegations to the employee promptly before recollections fade.
  5. Expectations - where significant delays in concluding the investigation are anticipated, this should be notified to the affected employee and where possible a timescale for completion given.
  6. Preserving evidence - the investigating officer should consider what evidence or documentation they might require. Where evidence is likely to perish or be removed or destroyed this should be gathered as a priority.
  7. Fair investigatory meeting - interview the ‘accused’ employee to establish his/ her version of events; give the employee advanced warning of the meeting and time to prepare. The employee should be made aware of the allegations against them and be provided with any documentation that the investigating officer wants to speak to them about.
  8. Representation - be aware that, although there is no statutory right for an employee to be accompanied at an investigatory meeting, the right may apply under the company disciplinary procedure or by reason of custom and practice.
  9. Witnesses - interview witnesses, sometimes more than once if necessary. Employers need not interview all available witnesses once a fact has become clearly established.
  10. Record keeping - if possible, have someone accompany the investigating officer to interviews so they can take a note of the interview allowing the investigating officer to focus on the questions. Ask the witnesses to read through the notes and confirm they are a true reflection of the conversation by signing and dating them.
  11. Confidentiality - witnesses should be advised not to discuss the investigation with other employees or third parties and, where appropriate, be reminded of their legal duties of confidentiality.
  12. Impartial reporting - after collating the evidence, including statements and relevant documents, the investigating officer should draft an investigation report setting out a summary of the evidence including any inconsistencies. They should not draw any conclusions: that is the role of the disciplinary panel.
  13. Recommendations - depending on what the employer’s disciplinary policy says, it may be within the investigating officer’s remit to recommend whether the matter should proceed to a disciplinary hearing.
  14. Acas code - follow the recommendations about disciplinary investigations in the Acas code of practice on disciplinary and grievance procedures. Failure to do so can lead to an uplift of up to 25% in compensation if there is a finding of unfair dismissal.