A proper investigation is a critical part of a potential disciplinary matter. The investigation will help the employer to determine whether or not there is a case to answer at a disciplinary hearing and, importantly, it will ensure the employee understands the allegations against them. Here are some key things to remember when conducting an investigation.
The investigating manager
Too often I see investigations that are of poor quality, with key questions unanswered, poorly drafted interview notes and a lack of clarity with regard to the allegations for example. Firstly then consider whether the investigating manager is equipped for their role. Do they need training?; do they have a structured plan for the investigation?; do they understand the difference between an investigation meeting and a disciplinary hearing?
Whlst it is often the employee’s line manager who will conduct an investigation this may not be appropriate if the line manager has raised the matter under investigation or if they themselves are a potential witness in the investigation.
Should the matter proceed to a disciplinary hearing then it is always advisable to have another manager conduct the disciplinary as this will help avoid any suggestion that the outcome has been pre-judged.
Is suspension appropriate?
See our blog post of 14 February (below) for more on this question.
Always conduct an investigation
This might seem obvious in very simple matters or where the employee’s wrongdoing is seemingly obvious. However a failure to investigate will not allow the employee to explain the circumstances or provide any mitigation for their actions which could have a significant bearing on the outcome.
Be reasonable
The extent of the the investigation should be determined by the circumstances. Whilst it need not be forensic in nature the resources available to the employer should be factored into the question of reasonableness.
Also consider the potential outcomes based on the allegations. If they will potentially lead to dismissal (and therefore potentially constitute gross misconduct) then a higher standard of investigation is to be expected. And remember, the investigating manager should pursue lines of enquiry that could determine both the employee’s innocence as well as their guilt.
Impress a duty of confidentiality on interviewees
Confidentiality should be maintained throughout the process and interviewees should be advised that a breach of confidentiality is likely to render them liable to disciplinary proceedings.
Keep detailed notes
In addition to keeping notes, write them up into a formal record as soon as possible after interviews and provide each interviewee with the opportunity to review them and suggest amendments. The interviewees’ agreement to their notes should be obtained and recorded.
What about companions?
There is no statutory right to have a companion in investigatory interviews and it is unlikely that a companion is permitted in the employer’s handbook or policies.
However consider whether this would be a reasonable adjustment for someone with a disability or if there is a potential language difficulty because the interviewee is not a native speaker.
It’s not a disciplinary hearing
The best way of thinking about this perhaps is to remember that the purpose of the investigation is to uncover the facts. It will be to role of the disciplinary hearing manager to decide what action should be taken as a consequence of what has, or has not, happened.
The investigating manager must be impartial at all times during the investigation interviews, which can be tricky in matters such as bullying and harassment. It is worth raising the question again at this point of whether the investigating manager has been sufficiently trained.
Act appropriately
All those who are participants in the process, and especially the alleged wrongdoer, should be treated with dignity and respect.
Inappropriate means of “fishing” for evidence is likely to lead to a claim that the employer has breached the implied duty of trust and confidence.
Recommend next steps
The investigating manager is best placed to recommend next steps, and in particular whether the matter should proceed to a disciplinary hearing.
Whatever the recommendations the investigating manager should document the rationale for their recommendations.