Although the rules on what constitutes a reasonable disciplinary investigation in an employment context are not set out in any related legislation, it is still vital that employers know what Employment Tribunals look for when assessing fairness.
In the absence of any contractual requirements and/or collective agreements that determine the steps to be taken during such an investigation, there are no hard and fast rules on how they should be conducted. The key issue is whether the employer’s handling of the situation is reasonable or not.
Although not definitive, case law at least sheds some light on the elements that need to present if an investigation is to be considered reasonable. These include…
- the general even-handedness of the Investigating Officer;
- the investigation being confined to the facts of the case;
- a thorough and timely search for all relevant evidence (not just that which supports the allegations against an employee!);
- statements being taken from all potentially relevant witnesses;
- an accurate record being kept in respect of all actions taken by the Investigating Officer.
Such an approach would accord with the relevant ACAS Code of Practice, which is routinely referred to by tribunals when assessing the reasonableness of disciplinary processes, and can be the source of additional penalties where it is deemed not to have been followed.
As employees often confuse investigatory meetings with disciplinary hearings, it is advisable to confirm at the outset of any such meeting that it is in fact not a disciplinary hearing, merely a fact-finding exercise to determine whether or not such a hearing is necessary.
Another popular misconception on the part of employees is that they have the right to be accompanied at investigatory meetings. As long as this right is not provided for within an internal disciplinary procedure, the statutory right to be accompanied does not apply to investigatory meetings.
The issue of whether to suspend an employee pending investigation is another common area of uncertainty for employers. Typical situations in which suspension may be appropriate are where the allegations under consideration constitute gross misconduct (in which case, to allow the employee to carry on working during the investigation could undermine the seriousness of the alleged misconduct), where working relationships have broken down and where there is a risk that the employee in question may tamper with evidence. However, suspension is not a measure to be taken lightly. An employer should be sure that the circumstances merit it, as unjustified suspensions can lead to constructive dismissal claims. Care needs to be taken not to damage the employee’s reputation by maintaining confidentiality as far as is reasonably practicable. The period of suspension should be kept to a minimum, and whether its continuance is necessary should be kept under review. The employee should also be kept up-to-date on the progress of the investigation and notified of any likely delays. Suspension should, in most circumstances, be with pay, and consideration should be given to holding return-to-work interviews where investigations do not lead to disciplinary action so that any concerns employees may have on their return may be addressed.
Other elements we would consider vital to ensuring the reasonableness of a disciplinary investigation are as follows…
- The Investigating Officer should not go on to assume the role Disciplining Officer – in most cases, the role of the latter should be adopted by somebody of equivalent (but preferably greater) seniority than the former.
- The Investigating Officer should be impartial, and this usually requires him or her to have had no involvement in the allegations under investigation.
- The allegations should be kept confidential insofar as is reasonably possible.
- During the investigatory meeting, the reason for the investigation should be confirmed to the employee, and the Investigating Officer should ask open questions about the subject matter so as to avoid any implication of guilt.
- During the investigatory meeting, the employee should be provided with sufficient opportunity to review any documentation referred to.
Although the above recommendations may seem to paint the picture that the effective execution of a disciplinary investigation is an exact science, the accurate and consistent application of carefully drafted policies and procedures which take into account these steps should be enough to ensure they stand up to external scrutiny and are regarded as reasonable by the powers that be.
At Employee Management Ltd, our HR specialists are highly skilled in the origination, implementation and maintenance of robust policies and procedures, and have vast experience in conducting comprehensive workplace investigations into disciplinary and grievance matters. If a situation escalates to the point of litigation then tribunal representation is one of our key Employment Law Services. To speak in confidence about any issue you may have in this regard, please contact one of our HR consultants without delay.