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.