Carrying out investigationsCarrying out investigations

Toni McAlindinToni McAlindinMarch 2013March 2013To join the Employment Law network and To join the Employment Law network and receive free bulletins email receive free bulletins email info@tonimcalindin.co.ukinfo@tonimcalindin.co.uk

When is investigation When is investigation needed?needed?

There are many employment situations which There are many employment situations which require a rigorous and thorough investigationrequire a rigorous and thorough investigation

Caselaw has developed over the years Caselaw has developed over the years regarding a “reasonable” investigationregarding a “reasonable” investigation

It is a significant factor in cases of unfair It is a significant factor in cases of unfair dismissal and in cases of discrimination dismissal and in cases of discrimination particularly allegations of bullying and particularly allegations of bullying and harassmentharassment

However other situations require an employer However other situations require an employer to “investigate” ie gather informationto “investigate” ie gather information

For instanceFor instance

Cases of misconduct – probably the most obvious areas Cases of misconduct – probably the most obvious areas eg theft, violence, breach of company policieseg theft, violence, breach of company policies

Attendance and performance issuesAttendance and performance issues Bullying and harassment – whether or not linked to any Bullying and harassment – whether or not linked to any

discriminatory reasondiscriminatory reason Absence due to stressAbsence due to stress Grievances raised by an employeeGrievances raised by an employee Collective grievancesCollective grievances Following action against the company such as losing a Following action against the company such as losing a

tribunaltribunal Whistleblowing allegations Whistleblowing allegations Etc, etc …………. In other words it is a normal part of Etc, etc …………. In other words it is a normal part of

everyday managementeveryday management

The disciplinary investigationThe disciplinary investigation

Whatever the reason for conducting an investigation, Whatever the reason for conducting an investigation, several factors will be commonseveral factors will be common

For instance the rules of natural justice ie everyone has For instance the rules of natural justice ie everyone has the right to know the case against them – so it must be the right to know the case against them – so it must be properly investigated to ascertain what that case isproperly investigated to ascertain what that case is

Everyone has a right to answer – this is part of a fair Everyone has a right to answer – this is part of a fair procedure in general – however an individual may be procedure in general – however an individual may be interviewed as part of the investigation – at the “fact interviewed as part of the investigation – at the “fact finding” rather than “blame giving” stagefinding” rather than “blame giving” stage

There should be no biasThere should be no bias Therefore an individual who is a victim, a witness or Therefore an individual who is a victim, a witness or

likely to play another part in proceedings should not likely to play another part in proceedings should not carry out an investigationcarry out an investigation

This is particularly true of misconduct investigations but This is particularly true of misconduct investigations but less true of investigations into attendance or less true of investigations into attendance or performanceperformance

Discipline continuedDiscipline continued Investigations are key to following a fair procedure Investigations are key to following a fair procedure An inadequate investigation might render dismissal unfairAn inadequate investigation might render dismissal unfair To be fair a dismissal has to be for one of the five potentially fair To be fair a dismissal has to be for one of the five potentially fair

reasons ie conduct, capability, redundancy, statutory ban, some reasons ie conduct, capability, redundancy, statutory ban, some other substantial reasonother substantial reason

An employer must then go on to demonstrate that he acted fairlyAn employer must then go on to demonstrate that he acted fairly An employer is not expected to achieve the criminal standard of An employer is not expected to achieve the criminal standard of

beyond all reasonable doubt but only a reasonable beliefbeyond all reasonable doubt but only a reasonable belief The leading case is The leading case is British Home Stores v Burchell 1978British Home Stores v Burchell 1978

where the EAT held that an employer must establish a genuine where the EAT held that an employer must establish a genuine belief on reasonable grounds after a “belief on reasonable grounds after a “reasonable investigation”reasonable investigation”

In In Polkey v Dayton Services Ltd 1987Polkey v Dayton Services Ltd 1987 the House of Lords held the House of Lords held that any procedural shortfall will make a dismissal unfair that any procedural shortfall will make a dismissal unfair (although compensation might be reduced following the “no (although compensation might be reduced following the “no difference rule”)difference rule”)

Failure to follow the ACAS Code on discipline might lead to an Failure to follow the ACAS Code on discipline might lead to an uplift of up to 25% on the compensatory awarduplift of up to 25% on the compensatory award

Purpose of investigationPurpose of investigation

As stated in the ACAS code – to establish the factsAs stated in the ACAS code – to establish the facts Should be someone at management level – procedures Should be someone at management level – procedures

may dictate who does it – in large organisations there may dictate who does it – in large organisations there may be specific trained investigatorsmay be specific trained investigators

Different person to the one conducting the hearingDifferent person to the one conducting the hearing Employee may want to carry out own investigationEmployee may want to carry out own investigation Depends on what is being investigated eg appraisals for Depends on what is being investigated eg appraisals for

performance, sick notes, contractual terms, other performance, sick notes, contractual terms, other employees’ discipline, letters, emails, policies, employees’ discipline, letters, emails, policies, procedures, speaking to other staff, unions, procedures, speaking to other staff, unions, representativesrepresentatives

Where an employee is suspended it is difficult to collect Where an employee is suspended it is difficult to collect evidence – sometimes that is why the individual is evidence – sometimes that is why the individual is suspended to stop them influencing the investigation or suspended to stop them influencing the investigation or other employeesother employees

PolkeyPolkey

The famous case of Polkey – often called the “no The famous case of Polkey – often called the “no difference” rule ensures that failure to follow a difference” rule ensures that failure to follow a proper procedure including investigation is proper procedure including investigation is almost guaranteed to make any dismissal unfairalmost guaranteed to make any dismissal unfair

The level of compensation, however, may be The level of compensation, however, may be reduced to reflect the fact that a fair procedure reduced to reflect the fact that a fair procedure may have led to the same outcomemay have led to the same outcome

However why chance it – better to have a fair However why chance it – better to have a fair procedure including discipline ie there are no procedure including discipline ie there are no circumstances when failure to investigate can be circumstances when failure to investigate can be excused no matter how flagrant the misconductexcused no matter how flagrant the misconduct

SeriousnessSeriousness The more serious the potential consequences the The more serious the potential consequences the

higher the standard of investigation requiredhigher the standard of investigation required Salford Royal NHS Foundation Trust v Roldan Salford Royal NHS Foundation Trust v Roldan a a

nurse was accused of mistreating a patient, based on nurse was accused of mistreating a patient, based on the evidence of a colleague. Dismissal for GM was the the evidence of a colleague. Dismissal for GM was the end of her career, loss of work permit and deportation – end of her career, loss of work permit and deportation – high standard requiredhigh standard required

Crawford v Suffolk Mental Health PartnershipCrawford v Suffolk Mental Health Partnership – – nurse unfairly dismissed following an allegation that nurse unfairly dismissed following an allegation that she used improper restraint methods on an elderly she used improper restraint methods on an elderly patient. Dismissal unfair – hospital conducted staged patient. Dismissal unfair – hospital conducted staged reconstruction without inviting the claimant or her reconstruction without inviting the claimant or her representativerepresentative

Range of reasonable responses Range of reasonable responses – carrying out further – carrying out further investigationinvestigation

Stuart v London City AirportStuart v London City Airport – individual worked at – individual worked at City airportCity airport

Went into duty free to buy presentWent into duty free to buy present Held in his hands – re-directed to a different tillHeld in his hands – re-directed to a different till Called over by colleague over the store boundary and Called over by colleague over the store boundary and

had a discussionhad a discussion Dismissed for misappropriationDismissed for misappropriation Did not interview store operatives or other colleagueDid not interview store operatives or other colleague Did not check CCTV cameraDid not check CCTV camera Unusual for court to intervene and require further Unusual for court to intervene and require further

investigation but here EAT stated that where there are investigation but here EAT stated that where there are serious allegations of dishonesty then failure to carry out serious allegations of dishonesty then failure to carry out exculpatory investigations was objectively unreasonableexculpatory investigations was objectively unreasonable

SuspensionSuspension

Consider very carefully whether it is requiredConsider very carefully whether it is required See recent case of See recent case of Crawford v Suffolk Mental Health Crawford v Suffolk Mental Health

Partnership NHS Trust Partnership NHS Trust – two nurses suspended – two nurses suspended pending investigation into mishandling patient with pending investigation into mishandling patient with dementiadementia

Six month suspensionSix month suspension Court of Appeal – held sometimes a long suspension may Court of Appeal – held sometimes a long suspension may

constitute breach of trust and confidence, can lead to constitute breach of trust and confidence, can lead to stigma even if no disciplinestigma even if no discipline

Held no real risk of behaviour being repeated if they Held no real risk of behaviour being repeated if they stayed at work – astonished that referred to policestayed at work – astonished that referred to police

Suspension should not be automatic – each case Suspension should not be automatic – each case should be considered on its merits ie risk of should be considered on its merits ie risk of repetition, impact on other staff, fair investigationrepetition, impact on other staff, fair investigation

Criminal offencesCriminal offences The ACAS code makes it clear that just because an employee is The ACAS code makes it clear that just because an employee is

charged with or convicted of a criminal offence, this is not enough charged with or convicted of a criminal offence, this is not enough in itself for disciplinary actionin itself for disciplinary action

Consideration needs to be given to what effect the charge or Consideration needs to be given to what effect the charge or conviction has on the employee’s suitability to do the job and their conviction has on the employee’s suitability to do the job and their relationship with their employer, work colleagues and customers relationship with their employer, work colleagues and customers (para 30)(para 30)

In other words it depends on the nature of the offence, whether it In other words it depends on the nature of the offence, whether it happened at work (often will be gross misconduct) or outside of happened at work (often will be gross misconduct) or outside of work, the nature of the job, the impact on the workplace eg work, the nature of the job, the impact on the workplace eg reputationreputation

Someone charged with fighting – may have no impact on work, Someone charged with fighting – may have no impact on work, someone charged with sexual offences – may have an impact someone charged with sexual offences – may have an impact depends on the job and other colleaguesdepends on the job and other colleagues

It is not for the employer to take a moral view of the conduct but to It is not for the employer to take a moral view of the conduct but to look at how it affects the employer and the employer’s reputationlook at how it affects the employer and the employer’s reputation

Criminal offences at work will normally be for “conduct” reasons, Criminal offences at work will normally be for “conduct” reasons, outside it may be “SOSR” eg trust and confidenceoutside it may be “SOSR” eg trust and confidence

Police investigationsPolice investigations If the police are carrying out a criminal investigation into a matter that is If the police are carrying out a criminal investigation into a matter that is

also part of a disciplinary investigation the employer may be hampered in also part of a disciplinary investigation the employer may be hampered in gaining sufficient informationgaining sufficient information

This is particularly likely if the incident happened outside of workThis is particularly likely if the incident happened outside of work See See Leach v OFCOM Leach v OFCOM allegations of child sexual abuse whilst on holiday allegations of child sexual abuse whilst on holiday

in Cambodiain Cambodia Several branches of the police said that he was under Several branches of the police said that he was under

investigationinvestigation Employer had no way to test the information but feared damage Employer had no way to test the information but feared damage

to reputation and dismissed for breach of trust and confidenceto reputation and dismissed for breach of trust and confidence ET – fair dismissal for SOSR, proper hearing, had not just accepted word ET – fair dismissal for SOSR, proper hearing, had not just accepted word

of CAIC but investigated as far as it couldof CAIC but investigated as far as it could EAT held Ofcom entitled to protect its reputationEAT held Ofcom entitled to protect its reputation CA – only question was whether this was SOSRCA – only question was whether this was SOSR Aware of potential injustice but only question was had the employer Aware of potential injustice but only question was had the employer

acted reasonably – injustice not from employer but those falsely accusing acted reasonably – injustice not from employer but those falsely accusing himhim

Employer would have neither expertise nor resources to independently Employer would have neither expertise nor resources to independently verify the allegationsverify the allegations

Police investigations contdPolice investigations contd The employee may be advised by his lawyer not to cooperate The employee may be advised by his lawyer not to cooperate

for fear of damaging any criminal trialfor fear of damaging any criminal trial It may be difficult for an employer to get access to relevant It may be difficult for an employer to get access to relevant

information to conduct a proper investigationinformation to conduct a proper investigation The employer must carry out his own reasonable investigation The employer must carry out his own reasonable investigation

as far as the circumstances allowas far as the circumstances allow It should not rely on the outcome of police investigations as for It should not rely on the outcome of police investigations as for

the most part these will relate to criminal sanctions with a the most part these will relate to criminal sanctions with a different burden of proof and potential penaltydifferent burden of proof and potential penalty

If the police investigation does not result in prosecution the If the police investigation does not result in prosecution the employer could still conclude that disciplinary action is justified employer could still conclude that disciplinary action is justified on the basis of his own investigation because the test is on the basis of his own investigation because the test is “reasonable belief” whereas in a criminal case it is “beyond all “reasonable belief” whereas in a criminal case it is “beyond all reasonable doubt”reasonable doubt”

If the police investigation results in a prosecution an employer If the police investigation results in a prosecution an employer will have to decide what impact that has on his or her decision will have to decide what impact that has on his or her decision to dismiss eg if the employee is in prison, is found guilty of a to dismiss eg if the employee is in prison, is found guilty of a crime (this is likely to be gross misconduct)crime (this is likely to be gross misconduct)

Group DismissalsGroup Dismissals

Sometimes it can be impossible to ascertain who committed an Sometimes it can be impossible to ascertain who committed an act of misconduct particularly areas such as theftact of misconduct particularly areas such as theft

It may be clear after investigation that it is one of two or more It may be clear after investigation that it is one of two or more but not possible to decide whombut not possible to decide whom

It can be fair to dismiss both or all ifIt can be fair to dismiss both or all if• act justifies dismissalact justifies dismissal• employer has made a thorough investigationemployer has made a thorough investigation• employer reasonably believes more than one person could employer reasonably believes more than one person could

have done ithave done it• employer identifies the group who could have done itemployer identifies the group who could have done it• each person was individually capable of doing iteach person was individually capable of doing it• employer cannot reasonably identify the culpritemployer cannot reasonably identify the culprit

Equally an employer may have two conflicting sets of Equally an employer may have two conflicting sets of information and must decide who to believe – if unable to resolve information and must decide who to believe – if unable to resolve conflicting accounts – the wrongdoer might be given the benefit conflicting accounts – the wrongdoer might be given the benefit of the doubtof the doubt

ACAS code of practice on ACAS code of practice on disciplinary and grievance disciplinary and grievance proceduresprocedures

Practical guidance on handling discipline and grievance situations Practical guidance on handling discipline and grievance situations and recommendations about investigationsand recommendations about investigations

It suggestsIt suggests• Establishing the facts of the case by carrying out investigations Establishing the facts of the case by carrying out investigations

without unreasonable delaywithout unreasonable delay• Sometimes this will be collation of evidence eg performance or Sometimes this will be collation of evidence eg performance or

attendance figures, paper evidence etcattendance figures, paper evidence etc• Others will require investigatory meetings with the employee Others will require investigatory meetings with the employee

and/or others eg witnessesand/or others eg witnesses• In misconduct cases different people should carry out the In misconduct cases different people should carry out the

investigation and disciplinary hearinginvestigation and disciplinary hearing• If there is an investigatory meeting, it should not in itself lead If there is an investigatory meeting, it should not in itself lead

to any disciplinary action to any disciplinary action • Any period of suspension should be as brief as possible and Any period of suspension should be as brief as possible and

should be kept under reviewshould be kept under review• Although there is no statutory right for an employee to be Although there is no statutory right for an employee to be

accompanied at this stage, such a right may be granted under accompanied at this stage, such a right may be granted under the employer’s policythe employer’s policy

Act quicklyAct quickly The code emphasises that any investigation must be The code emphasises that any investigation must be

carried out without unreasonable delay to establish carried out without unreasonable delay to establish facts before memories fadefacts before memories fade

Relevant factors may include whether the employee Relevant factors may include whether the employee had admitted any of the allegations, whether key facts had admitted any of the allegations, whether key facts were properly investigated at an early stage (were properly investigated at an early stage (Lim v Lim v Royal Wolverhampton Hospitals NHS Trust)Royal Wolverhampton Hospitals NHS Trust), the , the extent to which allegations rely on memory as extent to which allegations rely on memory as opposed to paper evidence and whether witnesses opposed to paper evidence and whether witnesses still work for the employerstill work for the employer

Problems arise where the police or other external Problems arise where the police or other external parties are involved eg Care Commission in a care parties are involved eg Care Commission in a care homehome

Questioning your accuser or Questioning your accuser or managermanager

Everitt v British Telecommunications plc Everitt v British Telecommunications plc - EAT held - EAT held employee was not entitled to question his line manager as to the employee was not entitled to question his line manager as to the latter’s investigation as the employee had admitted the offencelatter’s investigation as the employee had admitted the offence

The only purpose would have been to question the manager’s The only purpose would have been to question the manager’s motivation rather than dispute the adequacy of the investigation motivation rather than dispute the adequacy of the investigation or the truth of the allegations he made against the employeeor the truth of the allegations he made against the employee

No hard and fast rule – depends at all the circumstancesNo hard and fast rule – depends at all the circumstances For dismissal to be fair employer must establish that it reasonably For dismissal to be fair employer must establish that it reasonably

believed that the employee committed the act of misconduct – to believed that the employee committed the act of misconduct – to do so it must have carried out an investigation that is reasonable do so it must have carried out an investigation that is reasonable in all the circumstances. Where as here the employee admits the in all the circumstances. Where as here the employee admits the offence, the need for further investigation is reducedoffence, the need for further investigation is reduced

However he still has a right to make representations on However he still has a right to make representations on the allegationsthe allegations

Establishing the factsEstablishing the facts

Keep an open mind especially if the issue is a serious oneKeep an open mind especially if the issue is a serious one The nature and extent of the investigation will depend on The nature and extent of the investigation will depend on

the seriousness of the matterthe seriousness of the matter Look at the evidenceLook at the evidence The meeting should be confined to establishing the facts The meeting should be confined to establishing the facts

not deciding on a penaltynot deciding on a penalty Know your own policies not just discipline but any other Know your own policies not just discipline but any other

area you are investigatingarea you are investigating Some issues will be regarded as minor by one employer Some issues will be regarded as minor by one employer

but less so by another depending on the industry normsbut less so by another depending on the industry norms For instance does the policy lay down timescales for For instance does the policy lay down timescales for

carrying out an investigation, does it mention who and at carrying out an investigation, does it mention who and at what level should carry out an investigation?what level should carry out an investigation?

Investigatory meetingInvestigatory meeting Depending on the circumstances it may be necessary for an Depending on the circumstances it may be necessary for an

investigating officer to take a statement from an employee investigating officer to take a statement from an employee accused of misconduct so as to obtain his or her account of accused of misconduct so as to obtain his or her account of eventsevents

This is more likely where there are doubts about the evidence This is more likely where there are doubts about the evidence eg one person’s word against the other, third parties giving eg one person’s word against the other, third parties giving evidenceevidence

As with other areas of discipline it is important to give the As with other areas of discipline it is important to give the employee notice of any meeting and time to prepareemployee notice of any meeting and time to prepare

There may be a need to interview several witnessesThere may be a need to interview several witnesses Equally it may become apparent during the investigatory Equally it may become apparent during the investigatory

meeting that other people have to be interviewedmeeting that other people have to be interviewed Some may be reluctant witnesses eg other members of staff Some may be reluctant witnesses eg other members of staff

particularly if there are issues of bullyingparticularly if there are issues of bullying See rules on anonymous witnesses – obviously not ideal but not See rules on anonymous witnesses – obviously not ideal but not

uncommonuncommon See also witness statementsSee also witness statements

WitnessesWitnesses The investigating officer should arrange to meet individually The investigating officer should arrange to meet individually

with any witnesses to the incident or eventswith any witnesses to the incident or events He or she should ask the witness to give his or her own He or she should ask the witness to give his or her own

account of events ie not hearsay or second hand information account of events ie not hearsay or second hand information but what they themselves saw or heardbut what they themselves saw or heard

Statements should be made into witness statements and Statements should be made into witness statements and checked by the witness for any errorschecked by the witness for any errors

Employers cannot insist on an employee providing a statement Employers cannot insist on an employee providing a statement and may need to address any concernsand may need to address any concerns

It may be possible to anonymise some or all of the statement It may be possible to anonymise some or all of the statement ie blanking out parts which identify the witness or providing ie blanking out parts which identify the witness or providing only a summary of the statementonly a summary of the statement

If anonymous statements are used the investigating officer If anonymous statements are used the investigating officer should seek corroborating evidence of make a judgement as to should seek corroborating evidence of make a judgement as to whether the witness has any motive in lyingwhether the witness has any motive in lying

It may be necessary to re-interview witnesses during the whole It may be necessary to re-interview witnesses during the whole process as other relevant evidence comes to lightprocess as other relevant evidence comes to light

Witness statementsWitness statements Hussain v Elonex 1999 IRLR 420Hussain v Elonex 1999 IRLR 420

• main question is whether there is a fair and reasonable main question is whether there is a fair and reasonable investigationinvestigation

• no universal requirement to show statementsno universal requirement to show statements• but could be contractual requirement (avoid where possible)but could be contractual requirement (avoid where possible)• must only disclose statement if it contains the essence of must only disclose statement if it contains the essence of

the case and the case and • employee otherwise does not know case against them (rules employee otherwise does not know case against them (rules

of natural justiceof natural justice Many witness statements may be taken but only a small amount of Many witness statements may be taken but only a small amount of

the information might be relevant. The employee has no the information might be relevant. The employee has no inalienable right to see this information only to know the case inalienable right to see this information only to know the case against him or her. against him or her.

Anonymous informantsAnonymous informants

Guidance in Guidance in Linford Cash & Carry v Linford Cash & Carry v Thomson 1989 IRLR 235 ieThomson 1989 IRLR 235 ie• disciplining manager to interview informantdisciplining manager to interview informant• establish whether there is an ulterior motiveestablish whether there is an ulterior motive• is the information credible ie could the is the information credible ie could the

witness have seen the act, heard comments witness have seen the act, heard comments etcetc

• is there any corroborating evidenceis there any corroborating evidence• reduce information to written statementsreduce information to written statements• may be able to give statements with names may be able to give statements with names

deleted or verballydeleted or verbally• refer back to informant if issues arise at refer back to informant if issues arise at

hearinghearing

Anonymous informantsAnonymous informants

Ramsey v Walkers Snack Foods LtdRamsey v Walkers Snack Foods Ltd- dismissal for theft of - dismissal for theft of money in crisp packet – challenged when evidence came money in crisp packet – challenged when evidence came from employees who did not wish to be identifiedfrom employees who did not wish to be identified

Informants interviewed by HR manager who prepared written Informants interviewed by HR manager who prepared written statement – unsigned – contained no information which statement – unsigned – contained no information which might identify informantsmight identify informants

EAT held fair dismissal even though not all guidance in EAT held fair dismissal even though not all guidance in earlier case of earlier case of Linfood Cash & Carry Ltd v Thomson Linfood Cash & Carry Ltd v Thomson were complied with ie lack of detail – more detail might have were complied with ie lack of detail – more detail might have identified witnessesidentified witnesses

Managers involved in disciplinary hearing did not interview Managers involved in disciplinary hearing did not interview witnesses or weigh up their evidence – witnesses did not witnesses or weigh up their evidence – witnesses did not want to be interviewed by wider pool of managerswant to be interviewed by wider pool of managers

Need to look at reasons for anonymity and whether it Need to look at reasons for anonymity and whether it should be extended on the facts of the caseshould be extended on the facts of the case

Surveillance evidenceSurveillance evidence Time moves on as does technology. Cases are now likely to Time moves on as does technology. Cases are now likely to

involve social media both inside and outside work, secret involve social media both inside and outside work, secret recordings – (see recent HMV case where employees uploaded recordings – (see recent HMV case where employees uploaded redundancy meetings to Youtube)redundancy meetings to Youtube)

CCTV – covered by Data Protection – invasiveCCTV – covered by Data Protection – invasive Common to have cameras inside work but rarely covert but may Common to have cameras inside work but rarely covert but may

use covert where crime or serious offence is suspected. Often use use covert where crime or serious offence is suspected. Often use to “spy” on employees is assumed to be abusing sick pay schemeto “spy” on employees is assumed to be abusing sick pay scheme

McGowan v Scottish WaterMcGowan v Scottish Water – EAT confirmed that human right – EAT confirmed that human right respect for private and family life (Art.8) is triggered by respect for private and family life (Art.8) is triggered by surveillance of staff. But it is a balance – as long as a surveillance of staff. But it is a balance – as long as a proportionate means of achieving a legitimate aim – eg crime proportionate means of achieving a legitimate aim – eg crime preventionprevention

In the above case two private investigators watched Mr M In the above case two private investigators watched Mr M coming and going from home – held proportionatecoming and going from home – held proportionate

Important to explore other alternatives first – should have Important to explore other alternatives first – should have a policy which allows and tell employees – should be time a policy which allows and tell employees – should be time limitedlimited

DocumentationDocumentation

The investigating officer should collect any statements The investigating officer should collect any statements and other documentation relevant to the disciplinary and other documentation relevant to the disciplinary issueissue

These may include expenses claims, absence records, These may include expenses claims, absence records, clocking in cards, video or CCTV evidenceclocking in cards, video or CCTV evidence

The investigating officer should compile the information The investigating officer should compile the information and submit this with his or her recommendations to the and submit this with his or her recommendations to the person or persons who will make a decision on whether person or persons who will make a decision on whether to proceed to the disciplinary interview stageto proceed to the disciplinary interview stage

This information should also be provided to the employeeThis information should also be provided to the employee The employee should have the opportunity to see this The employee should have the opportunity to see this

information prior to the hearing (subject to what was said information prior to the hearing (subject to what was said above re anonymous witnesses)above re anonymous witnesses)

The right to be The right to be accompaniedaccompanied

As an investigation is a gathering of facts, it is generally As an investigation is a gathering of facts, it is generally understood that there is no right to be accompanied as understood that there is no right to be accompanied as there is for the disciplinary procedure itselfthere is for the disciplinary procedure itself

However a company’s own procedures may provide for a However a company’s own procedures may provide for a right to be accompanied and in some cases a right to be right to be accompanied and in some cases a right to be represented (more involved than accompanied)represented (more involved than accompanied)

Trade unions and representatives believe that individuals Trade unions and representatives believe that individuals should have a right to be accompaniedshould have a right to be accompanied

Management do not always agree arguing that this stage Management do not always agree arguing that this stage is a gathering of facts not an accusation or a disciplinary is a gathering of facts not an accusation or a disciplinary hearinghearing

However some individuals may feel confused or give rise However some individuals may feel confused or give rise to concerns during answers to questionsto concerns during answers to questions

Five “Ws” – helpful in Five “Ws” – helpful in investigationinvestigation

It may be useful to consider the following when conducting It may be useful to consider the following when conducting an investigation particularly into issues of misconductan investigation particularly into issues of misconduct

WHOWHO - was involved, witnesses - was involved, witnesses WHEN WHEN - incident handled, in work or out- incident handled, in work or out WHATWHAT - happened, different versions, records needed eg job - happened, different versions, records needed eg job

descriptions, rules descriptions, rules WHERE WHERE - did it happen- did it happen The fifth is more important in the hearing itselfThe fifth is more important in the hearing itself WHYWHY - incident took place, at that time or place, involving that - incident took place, at that time or place, involving that

particular personparticular person NOTE IMPORTANCE OF DIFFERENT PERSON CONDUCTING NOTE IMPORTANCE OF DIFFERENT PERSON CONDUCTING

INVESTIGATION THAN HEARINGINVESTIGATION THAN HEARING

What to doWhat to do What evidence do you need?What evidence do you need? Who do you need to speak to eg what witnessesWho do you need to speak to eg what witnesses See above for witness statements - better to speak to a person and See above for witness statements - better to speak to a person and

recordrecord Other things eg CCTV, documentation, policiesOther things eg CCTV, documentation, policies Perishable evidence Perishable evidence Can interview employee under investigation and any witnesses more Can interview employee under investigation and any witnesses more

than once as other information comes to lightthan once as other information comes to light What do you need from each person, putting alternative versions to What do you need from each person, putting alternative versions to

witnesseswitnesses Remain flexible – have some idea of what questions you want Remain flexible – have some idea of what questions you want

answered thoughanswered though Don’t put words into witnesses’ mouths or suggest answersDon’t put words into witnesses’ mouths or suggest answers Ask for information in the witness’s own wordsAsk for information in the witness’s own words Record and have the person check afterwards that this is what was Record and have the person check afterwards that this is what was

saidsaid Train managers to undertake investigationsTrain managers to undertake investigations Should there be suspensionShould there be suspension

Case to answerCase to answer The purpose of gathering facts is to decide on whether there is The purpose of gathering facts is to decide on whether there is

a case to answera case to answer No disciplinary action should be instigated at an investigatory No disciplinary action should be instigated at an investigatory

stagestage There should be a clear separation between the two stagesThere should be a clear separation between the two stages A number of choices need to be made depending on what A number of choices need to be made depending on what

arises during the investigation eg anonymous information not arises during the investigation eg anonymous information not backed up by more – do you continue at all even if you feel it backed up by more – do you continue at all even if you feel it is genuineis genuine

Conflicting information – do you give the employee the benefit Conflicting information – do you give the employee the benefit of the doubtof the doubt

Is there enough to move to carrying out covert surveillanceIs there enough to move to carrying out covert surveillance Is more than one person involved and one if not both must be Is more than one person involved and one if not both must be

the culpritthe culprit Remember – reasonable belief, on reasonable grounds, after Remember – reasonable belief, on reasonable grounds, after

reasonable investigation (see above for what is a reasonable reasonable investigation (see above for what is a reasonable investigation)investigation)

Performance and Performance and attendanceattendance

Although the basic rules are the same, in reality the immediate Although the basic rules are the same, in reality the immediate line manager will conduct the investigation into “capability” line manager will conduct the investigation into “capability” type disciplinetype discipline

It is still important to ascertain the facts eg level and frequency It is still important to ascertain the facts eg level and frequency of absence, reasons for absence, whether there is a disability, of absence, reasons for absence, whether there is a disability, what the prognosis is, whether any adjustments need to be what the prognosis is, whether any adjustments need to be made, impact on other staffmade, impact on other staff

With performance management should have robust With performance management should have robust performance appraisal systems but these tend to be an annual performance appraisal systems but these tend to be an annual evaluation whereas performance management should be evaluation whereas performance management should be ongoing ie what are the standards expected of the employee, ongoing ie what are the standards expected of the employee, what is the actual performance and therefore what is the gapwhat is the actual performance and therefore what is the gap

Discussion should then centre on the reason for the gap and Discussion should then centre on the reason for the gap and ways of closing the gapways of closing the gap

This should be done before any formal discipline takes placeThis should be done before any formal discipline takes place

Grievance investigationsGrievance investigations

When an employee raises a grievance it is important When an employee raises a grievance it is important that it too is investigatedthat it too is investigated

Take the grievance seriously ie why does the employee Take the grievance seriously ie why does the employee feel aggrievedfeel aggrieved

Investigate the facts and the surrounding circumstances Investigate the facts and the surrounding circumstances – show the employee that action has been taken to – show the employee that action has been taken to ascertain the grievanceascertain the grievance

Look for a solution that will satisfy the employee but not Look for a solution that will satisfy the employee but not damage the employer or other employeesdamage the employer or other employees

Provide feedback but be careful re what is happening to Provide feedback but be careful re what is happening to other employees as a result eg grievance against a other employees as a result eg grievance against a managermanager

Grievance investigations Grievance investigations contdcontd

A grievance may raise issues unknown to the manager A grievance may raise issues unknown to the manager who may not know or have all the factswho may not know or have all the facts

There may be allegations about another employee eg There may be allegations about another employee eg bullying and/or harassmentbullying and/or harassment

These will have to be investigated promptly and These will have to be investigated promptly and sensitively – where the grievance relates to another sensitively – where the grievance relates to another employee both have rights at workemployee both have rights at work

This may necessitate talking to witnessesThis may necessitate talking to witnesses It should be stressed that any discussion is confidential – It should be stressed that any discussion is confidential –

equally the party should not discuss matters with othersequally the party should not discuss matters with others Don’t make assumptionsDon’t make assumptions Keep an open mind – it will often be one person’s word Keep an open mind – it will often be one person’s word

against the otheragainst the other

Disciplinary InterviewsDisciplinary Interviews

If the investigation concludes that there is a case to If the investigation concludes that there is a case to answer then there should be a proper and separate answer then there should be a proper and separate disciplinary hearing conducted by a different manager.disciplinary hearing conducted by a different manager.

The principles are:-The principles are:-• Thorough preparationThorough preparation• Stating the purpose at the startStating the purpose at the start• Conducting it fairly but firmlyConducting it fairly but firmly• Listening to all sides and viewsListening to all sides and views• Stating the outcome clearly and sympatheticallyStating the outcome clearly and sympathetically

Sometimes it may be worth having a script – this could Sometimes it may be worth having a script – this could rarely be followed verbatim but it helps concentrate the rarely be followed verbatim but it helps concentrate the mind on the essentialsmind on the essentials

Often emotions get in the way ie anger, tears, violenceOften emotions get in the way ie anger, tears, violence Accurate documentation is VITALAccurate documentation is VITAL

SummarySummary

Act quicklyAct quickly Inform the employeeInform the employee Decide who to interviewDecide who to interview Conclude in a reasonable timeConclude in a reasonable time Establish the facts, who, where, when, how and maybe why Establish the facts, who, where, when, how and maybe why

although this may be part of the disciplinary hearingalthough this may be part of the disciplinary hearing ConfidentialityConfidentiality ClarifyClarify Who should carry out the investigationWho should carry out the investigation Documentation, policies, procedures, previous cases, Documentation, policies, procedures, previous cases,

recordingrecording SuspensionSuspension Right to be accompaniedRight to be accompanied Preparation of questionsPreparation of questions

Dos and dont’sDos and dont’s

Allow witnesses to refer to documentation to refresh Allow witnesses to refer to documentation to refresh memorymemory

Pause if the witness needs a breakPause if the witness needs a break Record all pertinent factsRecord all pertinent facts Keep calm and focusedKeep calm and focused Remember all parties need to keep things confidentialRemember all parties need to keep things confidential Don’t be afraid to challenge the witnessDon’t be afraid to challenge the witness Don’t substitute your own viewDon’t substitute your own view Don’t encourage witnesses to offer opinions and don’t Don’t encourage witnesses to offer opinions and don’t

offer your ownoffer your own Don’t assume or draw hasty conclusionsDon’t assume or draw hasty conclusions Don’t disclose confidential ifnormationDon’t disclose confidential ifnormation