Investigating employee misconduct or grievances is way down most managers’ to-do lists. Human resources practitioners sometimes struggle to persuade managers to take full responsibility for such investigations, but often all that is needed is proper guidance and support.
The consequences of failing to investigate promptly can range from valuable evidence perishing, through to successful tribunal claims for unfair or constructive dismissal. The Acas Code of Practice on Disciplinary and Grievance Procedures clearly states that an investigation must be undertaken prior to any disciplinary action, yet it provides little advice on how managers should do this.
Wherever possible, HR practitioners should encourage and train managers to carry out investigations themselves. In the case of grievance investigations or other sensitive disciplinary matters, it may be appropriate to appoint a manager who is not directly responsible for the employee or employees concerned. The HR practitioner is best employed as a ‘case manager’, as it may be necessary to advise both the employee and the investigating manager impartially during the investigation.
Separate the investigation from the disciplinary hearing. The same person conducting the investigation ought not to hear the disciplinary complaint against the employee in the interests of natural justice. Establish protocols and maintain good communication throughout the investigation period.
Approach every investigation in a non-judgemental manner – guilt or innocence should not be assumed. It may be appropriate to suspend the employee on full pay, but this is best carried out as a precautionary measure, and it should be made clear it is not a disciplinary sanction. Only consider this in the most serious cases 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.
Planning an investigation
What type of evidence will you need?
Don’t just rely on witness statements, as this may result in other crucial evidence being overlooked. Files, documents, CCTV footage or computer records can all be considered, if available. Policy documents and training records can also be produced as evidence.
If any evidence is likely to perish or be removed, gather it as a priority. Decide who needs to be interviewed and conduct interviews promptly before memories fade.
The employee under investigation and witnesses can also be interviewed more than once if further evidence comes to light. Identify precisely what needs to be established from each interviewee and prepare accordingly. Don’t have a pre-prepared list of questions – remain flexible so you can explore their answers. Avoid putting words into witnesses’ mouths or suggesting answers. All questions should aim to encourage witnesses to recall their version of events in their own words.
Full notes need to be made at the time of any interview. At the conclusion of interviews, it is best practice for interviewees to be invited to read through any notes the investigator has made and then sign them. Any draft statements subsequently produced should be taken back to the witness for signature and the original notes on which the statement was based must be retained until the conclusion of the disciplinary hearing and any subsequent appeal.
If the case against the employee does not proceed to a disciplinary hearing or is not proven, then the evidence should not be placed in a relevant filing system, such as a computerised personnel file, as this may be in breach of the Data Protection Act.
At the conclusion of any witness interviews, witnesses should be informed that if the case results in a disciplinary hearing, they may be required to attend to give evidence.
What if it is serious?
A common concern for investigating managers can be the more serious types of employee misconduct, where a criminal offence may have been committed – for example, fraud or drug dealing on the premises.
There may be a legal requirement to inform other agencies (such as the Health and Safety Executive or the police), so the evidence gathered for the disciplinary investigation may also be required for a criminal investigation. If this is the case, then continuity of evidence is important.
For your evidence to be admissible in a criminal prosecution, you need to be able to demonstrate where it was physically at any point in time. Seek legal advice at an early stage. In some cases it may be necessary or appropriate to wait for the outcome of a criminal trial before taking disciplinary action.
What should be done if the employee confesses to a criminal offence during the course of a disciplinary investigation? In brief, make a note of it. The note should be timed and signed by the person taking it, and the employee should be given the opportunity to read through the record and sign it as correct with, for example, ‘I agree this is a correct record of what was said’.
Where the employee disagrees with the record, you should record the details of any disagreement, and ask them to read these details and sign them to the effect that they accurately reflect their disagreement. Any refusal to sign should also be recorded. The investigation should then be terminated with a view to involving the police or any other appropriate investigatory body. Failure to do this is likely to make such unsolicited comments inadmissible in a criminal court.
A thoroughly planned and well-executed investigation will ensure employers have followed a fair procedure, and that any subsequent action taken is based on sound evidence. For HR, this reduces the risk of tribunal claims, saves time, avoids the costly need for re-investigating, and ensures the principles of natural justice are upheld.
Employee investigations: six steps to success
- Wherever possible, HR practitioners should encourage and train managers to undertake investigations themselves.
- Those conducting the investigation should not be involved in the decision-making at any subsequent disciplinary hearing.
- For more serious cases of alleged employee misconduct, consider suspending the employee on full pay, particularly if there is a risk the employee may disrupt the organisation or remove evidence.
- Approach investigations with an open mind and decide in advance what evidence you need to gather to support your case. 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.
- If you suspect a criminal offence has been committed, put the relevant investigatory body on notice straight away.
- The civil standard of proof (‘on the balance of probabilities’) is an acceptable standard to work to support any disciplinary action you take.
Richard Payne is a freelance HR writer, researcher and lecturer. He also provides training in internal investigation skills for managers and HR practitioners and an independent investigation service. www.bspstraining.co.uk