Top tips for disciplinary investigations
A fair investigation is an essential element of natural justice and overall fairness when it comes to disciplinary matters. Failure to carry out a fair investigation is likely to render any subsequent dismissal unfair, could amount to a last straw for the purposes of a constructive dismissal and could in either case result in an additional award of compensation of up to 25 per cent in any related unfair dismissal claim.
Here are our top ten tips for carrying out a fair and effective disciplinary investigation:
- Make sure the investigation is carried out by someone impartial who is not a witness to the matters being investigated, who won’t be involved in any later disciplinary stages and who has ideally been trained on how to conduct investigations.
- The role of the investigator in a disciplinary process instigated by an employer is a fact finding one only – it is not for the investigator to decide whether allegations are upheld and what, if any, sanction should be imposed.
- The investigation should be kept confidential by the person conducting it and by the witnesses involved. Interviews should be conducted in private and the importance of confidentiality emphasised.
- The amount of investigation required will vary enormously depending on the individual circumstances of the matter under investigation. The legal test is that an employer must undertake such investigation as is reasonable in all the circumstances. It must investigate sufficiently to ensure that the substance of the allegations is clear in order that these can be put to the employee under investigation in sufficient detail to enable a meaningful response. It is not necessary for an employer to extensively investigate each line of defence advanced by an employee; what matters is the reasonableness of the investigation as a whole.
- The investigation should be conducted as quickly as is reasonably possible and without unreasonable delay. Witnesses should be spoken to and notes taken of their recollection of events before memories fade.
- Employees have no statutory right to be accompanied at an investigatory meeting, although a contractual disciplinary procedure may give them such a right and many employers do offer this in any event.
- Full notes of interviews with each witness should be taken, ideally signed by the witness at the end of the interview as an accurate reflection of matters discussed.
- Consideration should be given as to whether any physical evidence is required e.g. CCTV footage, telephone records, expenses claims. Care should be taken with respect to any evidence gathered as a result of recording an employee's activity, such as surveillance film.
- Keeping a record of the investigation carried out is vital to ensure that there is evidence to show that the investigation was fair and sufficiently thorough, and to meet the employer's obligation to provide any employee under investigation with copies of all evidence that it intends to rely on in advance of any disciplinary hearing.
- The investigator should prepare an investigation report summarising the steps taken in the investigation, the allegations, and the evidence available in respect of them, which will assist with the conduct of any disciplinary hearing.
21st August 2020
We will be discussing how to manage the working environment post COVID.
17th August 2020 - 21st August 2020
Join our webinar series from our employment team who will be looking at the new world of work.
20th August 2020
Our experts will be dicussing TUPE transfers and how to manage them.