Handling disciplinary investigations

OVERVIEW

  • To be a fair dismissal, the employer must carry out reasonable investigations (the well-known: British Home Stores v Burchell test) but an investigatory meeting with the employee before proceeding to a formal disciplinary hearing isn’t always necessary (Sunshine Hotel Ltd v Goddard).
  • Check your policies: is there a contractual obligation to hold an investigation meeting?
  • There is no statutory right to be accompanied at a formal investigatory meeting but check your own policies.
  • An employee making a covert recording of an investigatory meeting may be guilty of misconduct (Phoenix House Ltd v Stockman).

CHOOSING THE INVESTIGATOR

  • They must be different from the disciplinary/appeal officer where this is practicable otherwise it is likely to be an unfair dismissal.
  • Where possible any disciplinary/appeal officer must be more senior to the investigator.
  • Consider using an external investigator if the organisation is small, the issues are complex and/or concern senior members of staff.
  • Remember that if using a lawyer to do the investigation, legal privilege is unlikely to apply as they are not advising on the law but carrying out an investigation.
  • Before choosing the investigator, consider the following:
    • Are they personally involved in the matter being investigated?
    • Would the appointment raise any conflict of interest concerns?
    • Are they likely to be influenced by people involved in the matter?
    • Might they be involved in any subsequent decision making on the matter?
    • Do they have a good knowledge of the organisation and how it operates?
    • What is their availability during the investigation’s provisional timeframe?
    • Are they trained and/or experienced in how to conduct investigations?
    • How confident are they at communicating in writing and/or orally?
    • What training or support may they require?
  • The importance of choosing the right investigator was highlighted in Cadent Gas Ltd v Singh where an employer was held to have unfairly dismissed an employee on the basis of his union activities, even though the decision maker was not aware of these. The investigating officer was held to have been motivated by resentment over the employee’s union involvement, such that they presented an imbalanced investigation that resulted in a charge of gross misconduct being considered.

SET OUT THE SCOPE OF THE INVESTIGATOR’S ROLE

  • The role of investigator is to be fair and objective so they can establish the essential facts; it is not to prove guilt of any party or make a disciplinary decision, that is for the disciplinary officer/panel (Dronsfield v University of Reading).
  • Remind the investigator to keep their investigation notes etc. as these should be provided to the individual if the matter proceeds to a formal disciplinary hearing.
  • Remind the investigator to ensure they are satisfied there is not a ‘hidden’ reason driving the investigation (Royal Mail Group Ltd v Jhuti).

THE INVESTIGATION PROCESS

  • An investigator should be neutral, looking for evidence which both supports the allegation and disproves it.
  • The level of investigation carried out by an employer is the ‘band of reasonable responses’ test. As the EAT said in the 1998 case of ILEA v Gravett: ‘At one extreme there will be cases where the employee is virtually caught in the act and at the other there will be situations where the issue is one of pure inference. As the scale moves towards the latter end, so the amount of inquiry and investigation which may be required, including questioning of the employee, is likely to increase’.
  • The standard of reasonableness will always be high where dismissal is a likely consequence - the serious effect on future employment and the fact that criminal charges are involved may not in practice alter that standard.
  • If the facts are in dispute then there must always be an investigation but where an employee admits an act of gross misconduct and where the facts are not in dispute, it may not be necessary to carry out a full investigation.
  • Witnesses must be interviewed and although it is not necessary to interview all of them once a fact has been established, relying on a second-hand version of what happened rather than talking to the one eyewitness can render a dismissal unfair. Witnesses may ask if they can be anonymised, but only on very rare occasions should this be allowed. The accused has a right to know the allegations and the evidence against them so they can defend themselves. If witnesses are kept anonymous it can be difficult to achieve this.
  • ACAS publishes useful investigation plan and report templates.

POSTPONING AN INVESTIGATORY MEETING

  • If an employee is off sick, consider the duration and reason for their absence. It may be reasonable to postpone the meeting but not indefinitely – consider alternatives such as them providing written responses to questions.
  • Is there enough to proceed with the disciplinary without the need for an investigation hearing?
  • Consider the nature of the ill health and whether reasonable adjustments may be needed.
  • Failure to attend an investigation hearing without good reason may, in itself, be gross misconduct if the employee simply refuses to obey a lawful instruction.

SUSPENSION DURING INVESTIGATION

  • Are the allegations sufficiently serious to amount to gross misconduct?
  • Is there ‘reasonable and proper cause to suspend’, e.g. to protect others such as staff, students, evidence or the business’ internal systems?
  • Have alternatives to suspension have been considered such as a temporary transfer, i.e. suspension is not a knee-jerk reaction?
  • Suspension must be as brief as possible and kept under regular review, especially if the investigation goes on for some time.
  • Avoid breaching the contract of employment particularly the implied term of trust and confidence (Agoreyo v London Borough of Lambeth).
  • Keep a note of the rationale for using suspension.
  • Suspension should be taken as a protective measure and not as a disciplinary sanction.
  • See also the ACAS guide to suspension during workplace investigations.

GRIEVANCES RAISED DURING THE INVESTIGATION

  • Consider the subject matter of the grievance.
  • If the grievance relates to something else (e.g. a general complaint about their manager who is not involved in the investigation), run them separately and concurrently.
  • If the grievance directly relates to the investigation, consider whether, if upheld, it might impact on the investigation, e.g. it is the manager complained about who is conducting an investigation or is the main witness. If so, deal with the investigation first.

KEY CASES ON INVESTIGATIONS

Sattar v Citibank NA

  • Continuing an investigation after deciding to call the employee to a disciplinary hearing was not a flaw in the process and did not make the decision unreasonable provided the employee had a full and fair opportunity to engage with any new material.
  • The absence of a formal investigation meeting with the employee at the start of the process did not make the procedure and outcome unfair.
  • Concerns need to be set out, so the employee knows what they are. The employee should not need to speculate as to the concerns.
  • It is possible to remedy a poorly articulated concern subsequently in the process, e.g. formal hearing or decision letter.

Retirement Security Ltd v Wilson

  • Remember procedural fairness is important.
  • Ensure any invitation to an investigatory meeting or information about the process is sent to the employee promptly. Check their contact details.
  • Consider speaking to them and handing the letter/information to them in person to ensure prompt delivery.
  • Allegations should not be vague ‘headlines’. Provide enough detail so that the individual understands what the concerns relate to.
  • Ensure everyone in an investigation meeting knows their roles during the meeting (witness, investigator, supporter, etc).