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Investigation & Dismissal
13th July 2010
Whether this is something you have had to deal with or not, as an employer, it's likely that at some point you will. Here are the facts;
When carrying out an investigation into employee misconduct, or a grievance, is key to establishing the facts. Failing to investigate could lead to successful Employment Tribunal claims for unfair or constructive dismissal.
The person appointed should have had no involvement in the matter under investigation. Should a disciplinary hearing need to be convened following an investigation, the ACAS Code of Practice on Disciplinary and Grievance Procedures recommends that different people should carry out the investigation and disciplinary hearing. Where this is not possible, due to the size of the organisation, employers are advised to seek expert advice.
It is important to carry out the investigation as soon as possible after the incident, allegation or grievance comes to light. This is to ensure that recollections do not fade, or that evidence is not lost. There must be no unreasonable delay in the investigation, especially where the offence might potentially be one of gross misconduct. Suspension will need to be considered for gross misconduct allegations, or if there is a potential risk to the organisation, employee or the investigation. HR advice should be taken to confirm whether suspension is required.
The investigating manager must collate copies of all documents which could be relevant to the case and decide who will need to be interviewed as part of the investigation. It is important that the investigating manager has a full understanding of the incident or allegations made, together with any documentary evidence to support the allegations, prior to speaking to the employee and any witnesses.
The investigatory meeting should be planned in advance and a list of questions compiled to ask at the interview. Non-judgemental, straightforward questions must be asked to obtain the facts. Open questions should be used to ensure as much detail as possible is collated, for example “Tell me about…”, “What was your involvement….?” Leading questions must be avoided!
It is imperative that an employee is told about any allegations made against them. If new allegations come to light during an investigation, then the employee must be told about these also.
There is no statutory right for employees to be accompanied at an investigatory meeting. However, the Employee Handbook and Disciplinary Policy and Procedure will confirm whether this right is provided to employees within your own particular organisation. Failure to follow your company policy and procedure could lead to a breach of contract claim by the employee.
As meetings are held purely for fact-finding purposes, no formal action will be taken during the meetings, and they can therefore be arranged verbally or in writing. The right to be accompanied at the meeting must be notified if this right is provided within your organisation.
Any meeting should take place in private and interruptions should be avoided. It should be made clear to the employee that the meeting is not a formal hearing but an opportunity for him/her to respond to any allegation, or issue, and to assist in establishing the facts.
The investigating manager will need to explain that notes will be taken at the meeting and these will provide a statement of events. The employee will be asked to review and sign the statement. Any documents that require an explanation should be discussed at the meeting. In addition, it will be important to explain that the information provided may be used in any subsequent disciplinary hearing.
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