A disciplinary investigation is the first important step in carrying out a full and fair disciplinary process. It is one step that employers may find insignificant but, on the contrary, a proper investigation will generally lead to a smoother disciplinary rocedure.
An investigation is key as it is required by the Acas Code of Practice on Disciplinary and Grievance Procedures and will be taken in to account by an employment tribunal when deciding compensation awards. It is usually detailed in a company’s disciplinary policy and procedure which should be followed internally.
Here’s what every business owner needs to know about a disciplinary investigation;
Who carries out the disciplinary investigation?
In a disciplinary procedure, wherever possible, a different appropriate person should independently chair each part of the procedure to ensure the overall procedure is fair and there can be no claims of bias. It is also important to use a person who is not personally involved in any of the matters under investigation.
For larger business, in most cases, a manager or a member of HR are likely to be appropriate to carry out the investigation but more complex matters may require a more senior or experienced person.
It is important that there are still senior employees available to hold the disciplinary or appeal hearing and, in very small businesses, it may be prudent to use an external consultant to ensure fairness.
The investigator does not decide if the person has done the thing that is alleged, instead their role is to find out as much information as they can and collate all possible evidence to allow a disciplinary procedure to be carried out fully. They are required to act fairly and objectively.
Informing the employee
The employee needs to be informed that they are facing disciplinary allegations and are being placed under investigation. They should be notified in writing, in advance of any procedural steps being carried out and should include the name of a contact to seek extra information from.
Before holding any investigatory meetings, the employee should receive advance written notice of this meeting.
This notice needs to include information such as the date, time and place of the meeting, the reason for the meeting, the name of the investigator, whether there is a right to be accompanied and what the planned outcome of the meeting is.
Considering interim measures
In certain circumstances, employers may need to consider putting temporary measures in place while the investigation is carried out.
A temporary transfer to a different area of work or a different team may be needed where there are high tensions or a breakdown in relationships between team members. This should only be used on a temporary basis and is likely to require the agreement of the employee involved.
Employers may have to suspend an employee, with pay, to remove risks such as property damage, health and safety and tampering of evidence. It is important that employers are making it clear suspension is only temporary and is not a disciplinary sanction.
What needs to be investigated?
Most investigators are unlikely to be able to produce an exhaustive list of what they need to collect because each investigation will depend on the disciplinary allegations in each case.
An investigation has to be reasonable based on the issues at hand and the potential disciplinary sanction that can be applied. Therefore, the more serious the allegation the more thorough the investigation should be.
A disciplinary investigation should not just focus on the initial issues as, in most cases, other sources of evidence or witnesses may come to light and ignoring these could lead to the investigation being unreasonable.
Holding investigatory meetings
These meetings are used to interview a person or witness who has been involved in the disciplinary issue. These are not disciplinary meetings but should be used to fact find and produce statements that can go on to be used as evidence in the disciplinary.
At the beginning of the meeting, the investigator should explain who is present, the role of the investigator, the purpose of the meeting and what will happen. During the meeting the investigator should ask questions about the matter, probe their responses and note down the discussions.
The investigator should seek as much information as possible without the meeting becoming argumentation or heated and should check if there is anything else they consider important before the meeting ends.
After the meeting, the investigator should provide the interviewee with a copy of their statement for them to sign and date as an agreement that the contents are accurate. They should also consider whether the meeting brought further issues to light that need to be investigated or mentioned additional witnesses who should be interviewed.
It may also be the case that the person needs to be interviewed more than once in circumstances where further points are raised at a later date and these need an explanation or clarification.
The investigator needs to gather as much evidence as possible to establish the facts of the disciplinary matter and this includes information that both supports and undermines the allegations.
The most important pieces of information to gather are witness statements produced after investigation meetings. These should usually be signed and dated as an indication that the contents are accurate and agreed to by the witness.
Other evidence to be gathered includes written evidence, such as letters, emails, timesheets, records, order sheets, etc. There may also be some physical evidence that will aid the disciplinary procedure such as CCTV, computer, phone and tachograph records.
This guide has been written exclusively for ByteStart by Peter Done, Managing Director of Peninsula Business Services – the UK’s leading specialist Employment Law, HR and Health & Safety service.