Before any formal disciplinary hearing can take place, you first have to carry out an investigation to determine whether or not there is a case to answer. An investigation is a fact find. The investigating officer is not there to try and establish guilt but to examine all the relevant facts to get a full picture of what has happened. Only when that’s been done he (or she) can decide whether there is a case to answer.
There are a number of problems with disciplinary investigations. These are some of the examples I most often come across.
- Investigating too narrowly i.e. setting out to prove guilt rather than establish the facts.
- Leaving it weeks or months after the alleged transgression. That’s way too late.
- Not probing enough and just accepting evidence at face value.
- Crossing the lines from investigation to discipline if an employee admits guilt.
- Not making reasonable adjustments for those who need support with the process.
But the one that really drives me to distraction is the “investigatory rant”.
The investigatory rant takes place where the investigating officer (IO) forgets that he is supposed to be collecting data holistically (i.e. looking at the whole story),listening patiently and carefully, considering whether follow–up questions are needed and acting in a completely neutral way, while gathering up all the relevant and necessary information.
Inexperienced, impatient, biased and generally poor IOs tend to start barracking the witness, throwing accusations around, telling the witness off, making assumptions and telling the witness what he does or doesn’t know and generally behaving like a bull in a disciplinary china shop. Needless to say it is incredibly unhelpful and almost always flaws the disciplinary process.
I cringe when I get the notes from these investigations - especially where I wrote a careful script to try and keep the IO on track and all the questions have been ignored.
How can you ensure that investigations are conducted fairly and thoroughly and don’t lead to unfair dismissal claims later on?
You must be able to show that you have 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.
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 fixed rules as to the level of inquiry you should carry out. 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.
Here are some points to consider when carrying out an investigation:
- Follow the ACAS code of practice on disciplinary procedures.
- Clearly identify the allegation to be investigated.
- Ensure the IO is independent and does not have any previous involvement in, or knowledge of, the matter.
- Ensure the investigation starts and finishes promptly; put the allegations to the employee before recollections fade.
- Collect evidence which is likely to be removed or destroyed quickly.
- Interview the accused employee to establish his/ her version of events.
- There is no statutory right for an employee to be accompanied at an investigatory meeting, but the right may apply under the company disciplinary procedure or by reason of custom and practice.
- Interview relevant witnesses, more than once if necessary.
- Have a note taker at interviews to allow the IO 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.
- Tell witnesses they must not discuss the investigation with other employees or third parties.
- After collating the evidence, including statements and relevant documents, the IO should draft an investigation report setting out a summary of the evidence including any inconsistencies. The IO can conclude that there is a case to answer and put it forward for a disciplinary hearing but should not draw any conclusions about guilt. That is the role of the discipline officer.
Get your workplace investigations right to avoid findings of unfair dismissal.
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Although every effort has been made to ensure the accuracy of the information contained in this blog, nothing herein should be construed as giving advice and no responsibility will be taken for inaccuracies or errors.
Copyright © 2018 all rights reserved. You may copy or distribute this blog as long as this copyright notice and full information about contacting the author are attached. The author is Kate Russell of Russell HR Consulting Ltd.
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