Employees must be given the opportunity to put their case and to answer allegations in respect of misconduct or poor performance. The Employment Tribunal will take into account the amount of investigation conducted and the way in which it was conducted when determining whether the investigation was fair. An unfair investigation will prejudice subsequent disciplinary proceedings and may make an otherwise fair dismissal unfair.
Any investigation should be reasonable, appropriate and proportionate to the circumstances. Special consideration should be given to the gravity of the allegations and the potential effect those allegations may have on the employee.
The Investigation Process
Employers should draw a clear distinction between the investigation process and a disciplinary procedure ideally by ensuring they are conducted by different people. Under the ACAS Code of Practice on Disciplinary and Grievance Procedures, employers should always conduct a disciplinary meeting. Failure to do so, even where there is seemingly incontrovertible evidence against an employee, will most likely result in a finding of unfair dismissal.
Employers must be able to:
- Establish they believed the employee to be guilty of misconduct;
- Show they had reasonable grounds for believing the employee was guilty of that misconduct; and
- Show that at the time they held that belief, they had carried out as much investigation as was reasonable.
Who Should Investigate?
The person conducting the investigation should, so far as it is possible, remain impartial and employers should be mindful of the ongoing working relationships within the organisation.
Questions employers should ask before deciding who should conduct a disciplinary investigation include:
- Who are the relevant witnesses?
- If the matter proceeds to the disciplinary stage, who will conduct those proceedings?
- If the individual appeals a decision taken at disciplinary stage, who will conduct that?
- Does the proposed investigator have the necessary level of authority to gather evidence?
- Do they have the appropriate experience?
- Have they had appropriate training, and do they know what is required of them?
- Does the person proposed work closely with any of the individuals in question, and will the working relationship between them, or the conduct of the investigation, be compromised as a result?
In gathering evidence, employers must bear in mind the purpose of the investigation, and the rights of the employee being investigated.
Throughout the investigation process employers should continually ask whether the evidence gathering is necessary for the purposes of the investigation and whether the way it is being obtained is reasonable and proportionate. Disproportionate investigations may result in an irretrievable breakdown in the employee/employer relationship leading to allegations of constructive dismissal.
Can Witnesses Remain Anonymous?
The Employment Tribunal has held it is permissible for witnesses to remain anonymous. Anonymity, however, cannot be guaranteed absolutely. There are circumstances in which disclosure will be necessary or required by law.
Suspension During Investigation
Suspension during an investigation should only be considered in the most serious circumstances. It can make the ongoing working relationship untenable as assumptions of guilt may be drawn, resulting in claims of constructive dismissal. Instances where suspension may be appropriate include where there is a threat to the business or to other employees, or where it is not possible to conduct a proper investigation into the allegations whilst the employee in question remains at work.
Any period of suspension should be kept as short as possible. Suspension should be with pay and the decision to suspend should be continuously reviewed. Suspension without pay is nearly always unlawful.
1) Contractual Rights – Any rights afforded to an employee by virtue of their contract of employment must not be breached when conducting a disciplinary investigation. A breach of contract and may result in claims of constructive dismissal.
2) Right to be Accompanied – In addition to rights under the employment contract or Trade Union / collective agreements, the Employment Rights Act 1996 provides that an employee has the right to be accompanied to disciplinary hearing by a Companion (see below). This right only applies to a meeting at which a disciplinary sanction is to be imposed or confirmed. There is no right to be accompanied to an investigatory meeting. Legal representation at disciplinary hearings is not normally permitted.
Right to be Accompanied to the Meeting
Under the Employment Relations Act 1999, employees have a legal right to bring a Companion to a grievance meeting. A Companion can either be a Trade Union Representative or a workplace colleague.
The request to be accompanied should be reasonable. As such, it may not be reasonable to bring a Companion who has a conflict of interest (i.e. a witness) or someone who may be prejudicial to the meeting (i.e. a co-complainant).
Employees do not have the right to bring a friend or a legal representative (save in very exceptional circumstances). If an employee suffers from a disability it may be appropriate for him to be accompanied by another person by way of a ‘reasonable adjustment’ to the usual procedure.