Before embarking on a formal investigation it’s important to identify the act complained of and, where possible, cross-reference this to the company’s disciplinary rules in order to establish what level of sanction is potentially available.
Next, you need to consider who you are going to appoint to deal with the various stages in the process. This involves identifying an Investigating Officer to deal with the investigation, a Disciplining Officer to deal with the disciplinary meeting and an Appeals Officer to hear any appeal. When considering who to appoint you may want to think about the following:
- Are they personally involved in the matter?
- Would their appointment raise any conflict of interest?
- Is it a technical matter that involves particular expertise?
- Might they be involved in any subsequent decision making on the matter?
- How confident are they at communicating in writing and orally?
- How will they cope under pressure if they have to give evidence in the Tribunal?
We always advise clients to make sure that, at the very least, the Appeals Officer is more senior than the Investigating Officer and Disciplining Officer so they have the authority to overrule any decision.
Extent of investigation required
The degree of investigation required is dependent upon the circumstances of each case. It is advisable to consider the following questions:
- How strong is the case against the employee? If the employee has been caught red handed, then the investigation is not required to be as thorough whereas if the opposite applies, the amount of investigation will need to be significantly more detailed.
- How serious are the allegations? Where the allegations are of a serious nature or the effect on the employee is far reaching, an investigation should be particularly rigorous.
The Investigating Officer needs to invite the employee to an investigation meeting to give them the opportunity to respond to the allegations and evidence against them. It is important that any investigation is conducted as quickly as is reasonably possible and without unreasonable delay.
What does the Investigating Officer have to do?
A key part of the role of an Investigating Officer is to gather evidence with a view to establishing the facts of the matter. It is important to remember that this includes any evidence which undermines the allegations as well as evidence that supports the allegations.
The Investigating Officer needs to speak to any relevant witnesses and take detailed notes of their meetings. Ideally you want witnesses to sign to confirm the notes are accurate.
In addition to witnesses, you also need to consider whether there is any physical evidence you need to gather such as CCTV footage, emails, phone records, policies etc. Some of this evidence may be time critical so it is important to act quickly before any of it is destroyed.
In some cases suspension on full pay may be appropriate where for example you are concerned that the employee may tamper with evidence or seek to influence witnesses. If you are considering suspending someone you need to consider the following:
- Pro-actively consider alternatives to suspension so you can show that it was not a knee-jerk reaction. Document your thinking.
- Discuss the matter with the employee before making a decision. This will make the decision making process more balanced.
- Make it clear that it does not represent any assumption of guilt and is not a form of punishment.
- Keep the period of suspension under regular review and ensure it is for no longer than is reasonably necessary.
- Keep the employee regularly updated with progress.
It is important to remember that an investigation meeting is not a disciplinary meeting. It is an opportunity for an Investigating Officer to interview someone who is involved in, or has information relevant to, the matter under investigation.
There is no statutory right to be accompanied to an investigation meeting but it may be sensible to allow someone to be accompanied in certain circumstances for example if English is not their first language.
In terms of the meeting itself it is advisable to have a list of pre-prepared questions to ask so you can focus on the answers you receive. Do not stick rigidly to these questions however – it is important to adapt depending on the responses you get. It is also good practice to summarise what you have been told to check your understanding before moving on.
We recommend that a written report is prepared for most investigations to confirm the investigator’s conclusions. The report should explain the following:
- Process of the investigation – how did they investigate, who did they speak to etc;
- Investigator’s findings;
- Investigator’s conclusion – do they recommend formal action, informal action or no action; and
- Supporting documents
The decision as to whether to refer the matter to the next (disciplinary) stage should be that of the Investigating Officer and they must be clear of their reasons for making that recommendation. In this regard whilst they can seek guidance from HR the decision must ultimately be that of the Investigating Officer.
We have extensive experience handling and advising on all types of disciplinary investigations from the routine to the most complex and unusual forms of employee misconduct. For more information please contact a member of our Employment Team.