As I outlined in my article of 9 September: Fair Process for a Misconduct Dismissal the introduction of the ACAS Code of Practice, in 2009, made investigations in both disciplinary and grievance matters critically important prior to a formal hearing.
The thoroughness of the investigation will depend on the circumstances of the case and the seriousness of the allegations against the employee. In cases of gross misconduct it is usually worth holding an investigatory meeting with the employee but in minor cases of misconduct this is not always necessary. Remember that as the investigatory meeting is to establish the facts, disciplinary action should not be considered at that meeting. Employees also have no statutory right to be accompanied to investigatory meetings, although you should check your own procedures and consider whether allowing an employee to be accompanied would be a reasonable adjustment to make in the case of a disabled employee. The ACAS Guide (which supports the ACAS Code on discipline and grievances at work) also advises employers to “keep an open mind and look for evidence which supports the employee’s case as well as evidence against”.
Here are my Top Tips to carrying out a comprehensive disciplinary investigation:-
- In order to demonstrate a fair process the investigating officer should not be directly responsible for the employee or employees concerned.
- In the interests of natural justice the investigation and disciplinary hearing should be separated out and conducted by two different managers. Those conducting the investigation should not be involved in the decision-making at any subsequent disciplinary hearing. This also enables protocols to be established and good levels of communication will be maintained throughout the investigation period.
- Approach investigations with an open mind and in a non-judgemental manner – guilt or innocence should not be assumed.
- Decide what evidence you need to gather and who you will need to collect witness statements from. If you decide to interview the employee against whom the allegation has been made, ensure you make it clear that it is not a disciplinary hearing.
- For more serious cases of alleged misconduct it may be appropriate to suspend the employee on full pay, this should always be carried out as a precautionary measure and it should be made clear it is not a disciplinary sanction. Suspension is common practice where an employee’s continued presence in the workplace might enable them to tamper with or remove evidence or to interfere with witnesses.
- It is also important to remember to remove access to passes, computer passwords and mobile phones, as well as other property that may enable staff under investigation to undermine the case against them – for example, company laptops.
- Suspended employees can be allowed back on to the premises to prepare their case for disciplinary hearings, but access to the workplace and files should only be permitted under supervision.