What are investigations and when are they needed?
All Employers have situations where an employee misbehaves or becomes comfortable and complacent in their employment or the role that they do. On these occasions, things may occur that require addressing via the Disciplinary Procedure.
The very first step in these cases is a thorough investigation into whether there is a case to take forwards to a disciplinary hearing.
An investigation is to:
- See if there is a case to be answered
- Ensure all parties are treated fairly
- Gather evidence from all parties
How to Conduct an Investigation well
A fair procedure must be followed when dealing with a disciplinary or a grievance case. An investigation is a vital part of this fair procedure, if an investigation is not done, any decision made could be deemed to be unfair which could result in legal action being taken against an employer and a claim brought to an Employment Tribunal.
Any investigation is covered by the ACAS Code of Practice on Disciplinary and Grievance Procedures, which covers the basic procedure and process that all employers must follow.
An investigation should start as soon as possible following the issue occurring, employees will remember situations better if they are asked about it sooner, if there is a time delay then peoples memories get distorted and key facts get forgotten.
The Role of the Investigation Officer is Key
When conducting an investigation, the role of the investigation officer is key. It is not enough to just decide to call a hearing and issue a warning to an employee or dismiss an employee, for a major or minor issue of an apparent wilful failure to undertake something related to their role or conduct at work.
A judgement on the case needs to be made on the facts of the situation, which in turn can only be established by carrying out a thorough and unbiased investigation.
An investigating officer should be someone who is not connected to the case, which can be a manager of a different department or a member of HR.
This allows for the investigation to be as fair as possible. In smaller companies there isn’t always different people available to conduct the investigation and disciplinary hearings separately, however where possible someone different should hear:
- The investigation
- The Disciplinary Hearing and outcome
- The Appeal hearing (if the disciplinary hearing outcome is appealed)
Ideally the person hearing the Appeal should be senior to the person hearing the Disciplinary.
An investigation into a grievance is usually best conducted by the person who is hearing the grievance.
The investigation is to establish the facts of the case such as:
- When the incident took place;
- How the situation arose;
- Where the incident took place;
- The full circumstances around the incident;
- Who may have witnessed the incident;
- Any Witness’s version of events in a statement gathered from them;
- The Employee who is under investigations’ version of events in a statement provided by them;
- Any other facts such as CCTV or paper evidence relevant to the allegation against the Employee.
- If an employee(s) needs to be suspended
It’s a bit like being a detective getting to the bottom of the facts without bias, and without leading the evidence collected in a reasonable and fair way. This is the important and vital role of the Investigation Officer in any potential disciplinary case. It is not the job of the Investigating Officer to make a judgement on the employee who the allegation or allegations are against.
However, they can recommend whether a disciplinary hearing is convened based on the full facts after the investigation and presented in an investigation report, backed up by any evidence gathered. The report should include whether the following happens:
- Formal action, which includes disciplinary hearing, changes to the Company Procedures, or further investigation
- Informal action, which can include, training or coaching, counselling or mediation
- No further action
A poor investigation can make it difficult for any further action being regarded as reasonable and fair and in turn could render any dismissal unfair bringing the risk of additional cost to the Employer. This is because the process would not conform to the ACAS Code on Conduct issues rendering the employer liable for up to an additional 25% cost on any award secured by the employee should they be dismissed.
Making a Plan for the investigation
Before an investigating officer starts their investigation, they should make a plan of what they need to cover, a plan should include:
- What needs to be investigated
- Who needs to be spoken to – witness to the case
- Sources of evidence, for example CCTV, emails, work records
- Time constraints, such as employee holiday dates
- Procedures to follow
- Ensure confidentiality is adhered to
By having a plan, it can enable the investigation to be done as fairly, effective and quickly as possible.
Communication with employees
It is important for employees involved with any investigation process to be communicated to and informed of why an investigation needs to take place.
Employees need to be informed of:
- Why an investigation needs to take place
- Who will be carrying out the investigation
- Who they will be talking to
- How long it will take or is likely to take
- What happens after the investigation is concluded
- That all information will be kept confidential
If there is a risk that an employee could tamper with evidence or influence witnesses then it is best to not tell them about the investigation until it is necessary.
It is important to remember that an investigation can be stressful for the employee in either disciplinary or grievance cases. It’s important for employers to consider the well-being and mental health of their employees and offer support where needed.