How To Investigate a Potential Disciplinary Matter
Since the introduction of the ACAS Code of Practice Disciplinary Investigations have become critically important prior to a formal disciplinary hearing. Employers are advised to “keep an open mind and look for evidence which supports the employee’s case as well as evidence against”. The thoroughness of the disciplinary investigation will depend on the circumstances of the case and the seriousness of the allegations against the employee.
Your Disciplinary Policy
First of all, it is essential that you ensure your Disciplinary Policy is appropriate for your business, legally compliant and transparent.
It’s important that your employees know what you expect from them. If they don’t know a policy exists they are unlikely to be aware of the seriousness of failing to follow the procedure. Going ahead with a dismissal in those circumstances would render the dismissal as unfair.
The easiest way to ensure your workforce receive the same information is to bundle your policies together in an Employee Handbook.
Who Should Investigate a Potential Disciplinary Matter?
The first step in any disciplinary process is to decide who will investigate the matter.
In order to demonstrate a fair process, the investigating officer should not be directly responsible for the employee or employees concerned.
In the interests of natural justice those conducting the investigation should not be involved in the decision-making at any subsequent disciplinary hearing. This also enables protocols to be established and good levels of communication to be maintained throughout the investigation period. Also, the Managers of the Disciplinary and Appeal Hearings know they might be involved at a later stage and can ensure they don’t get involved in discussions about the matter until their stage is reached.
Before you do anything else you need to consider all the steps that this process may go through and ensure you have appropriate people available. You will need independent people to:
- Manage the Investigation
- Manage the Disciplinary Hearing
- Manage the Appeal Hearing
Each of these people need to be totally impartial. For instance, not implicated in any way or likely to be implicated and there should be no evidence that any have been compromised during a previous stage of the process.
Relevant Case Law
Touch Tanning Limited, a family-run business, made the classic mistake of having one person act as “judge, jury and executioner” in a disciplinary procedure against an employee accused of misconduct.
How To Investigate a Potential Disciplinary Matter
Disciplinary Investigations are all about finding evidence and plotting together a sequence of events. Basically, the role of the Investigator is to get to the bottom of what happened and building a case. A case which might either prove or disprove an allegation against an employee.
Fact finding is the immediate first steps you take when an incident has occurred or allegation is made. The aim of this initial step is to quickly establish the seriousness and scope of the allegation and whether or not it warrants moving to the formal investigation stage.
The formal investigation will involve the production of a formal investigation report which will include collating all the ‘allegation related’ documents. Examples are witness statements, reports, expense claims. The report will assist the disciplinary manager decide whether or not to invoke the disciplinary process.
- Respond in writing to the complainant confirming receipt of their grievance and advise them of the next steps.
- Check your Disciplinary Policy and read the ACAS Code of Practice. If a company policy has been breached then you will also need to gather a copy of the policy you will be relying on to complete your investigation.
- Decide what evidence you need to gather for instance CCTV recordings and financial data.
- decide who you will need to collect witness statements from.
- Inform the alleged employee of the situation, the steps you are going through and provide them with a copy of your Disciplinary Policy.
- Inform the alleged employee of which witnesses you intend to interview and ask them to provide the names of any one they feel would provide additional information.
- Consider the broader picture for instance the culture, historic conduct and past behaviour.
- Keep notes of every discussion you have that is relevant to the investigation.
Should The Alleged Employee Be Suspended?
For more serious cases of alleged misconduct, it may be appropriate to suspend the employee on full pay. This should always be carried out as a precautionary measure and it should be made clear it is not a disciplinary sanction. Suspension is common practice where an employee’s continued presence in the workplace might enable them to tamper with or remove evidence or to interfere with witnesses.
It is also important to remember to remove access to passes, computer passwords, company laptops and mobile phones, as well as other property that may enable staff under investigation to undermine the case against them.
Suspended employees can be allowed back on to the premises to prepare their case for disciplinary hearings, but access to the workplace and files should only be permitted under supervision.
Meeting All The Relevant Parties
As part of the investigation, you will need to meet with all the relevant parties to gather their version of the events. For instance: someone might have made a complaint, there may be witnesses to the alleged misconduct and there’s the employee themselves.
It’s important to complete the investigation before memories fade so there shouldn’t be any delays in holding the investigatory meetings.
There is no Statutory Right to be Accompanied at an investigatory meeting although you should check your own procedures. Consider whether allowing an employee to be accompanied would be a reasonable adjustment to make in the case of a disabled employee or where English is not the employees first language.
Here is a checklist of points you need to consider for each meeting:
- When you interview the employee against whom the allegation has been made, ensure you make it clear that you are just fact finding and the meeting is not a disciplinary hearing.
- Prior to each interview ask the interviewee to confirm they are willing and prepared to participate in the process.
- Take minutes at every meeting.
- Conduct each meeting in a calm and professional manner, as with any meeting an agenda will help you stay on track.
- Remain open minded and never pre-judge.
- Calmly outline the reason for the meeting.
- Ask ‘open’ and not ‘leading’ questions i.e: who, what, why and when as these will get the employees to open up.
- Encourage feedback and suggestions to positively resolve matters.
- Separate out any hearsay or anecdotal comments.
- Be prepared to adjourn the meeting if the employee becomes distressed, record the timings of all adjournments in the minutes.
- Ensure all the meeting records are approved by the employees and provide each with a copy of the signed minutes from their meeting(s) for their own records.
Completing the Investigation Report
Ensure all the evidence, for and against the allegation, is included and ensure evidence is cross referenced where appropriate. Refer to any management file notes that relate to historic relevant factors.
Clarify where there may be mitigating circumstances. For example, was the employee aware of the policies and rules and/or is there a culture of this sort of behaviour.
Collate all the information you have gathered in a report:
- Introduce the reason for the investigation
- Outline the sequence of events
- List the evidence you have gathered and include copies
- List applicable policies and include copies
- List the people you have interviewed and include copies of the meeting records
- Finish with your summary of the facts.
Pass your completed file to the Disciplinary Manager.
What Happens Next?
The Disciplinary Manager will consider the investigation report and decide whether the matter is serious enough to warrant moving forward with formal disciplinary action.
If they consider formal disciplinary action is required the Disciplinary Manager will inform the alleged employee of their decision and formally invite them to a disciplinary hearing.