IT’S THE one question I get again and again from clients. That call of ‘I’ve just been told Sam has done x,y and z, so what do I do now, can I just give them a warning?’ and my response is always ‘you need to undertake an investigation into the incident and make a decision after that’.
It’s also that ‘what do we do next?’ question when I get the call to undertake a disciplinary process after the ‘investigation’ has already been completed and I discover it’s less than satisfactory. Not through any fault, or any desire to flaw the process, rather a failure of understanding of how critical this is in the overall process.
I will then get a ‘how do we do that’ or ‘how should we have done that?’ and I reach for my management guide and email it through. Two recent Employment Appeal Tribunal cases reinforce the requirement to follow due process, and be clear at all stages regardless of length of service (Mr P Murdock v British Airways Plc: UKEAT/0106/17/DM and Lancaster and Duke Ltd v Ms V Wileman: UKEAT/0256/17/LA). It’s these timely reminders and my recent client phone calls that have promoted me to share with you how to undertake a disciplinary investigation, and I will look at ‘how to conduct a disciplinary hearing’ and ‘how to do an appeal’ in later blogs #Promise.
The golden rule when thinking of doing an investigation is that a fair procedure should always be followed. The ACAS Code of Practice on Disciplinary and Grievance Procedures sets out what a fair disciplinary procedure should include and what warnings system should be followed. Acas Guide on discipline and grievances at work
A failure to follow the procedure outlined in the Code can make an otherwise fair dismissal unfair. And let’s also not forget that, in addition, if either party has unreasonably failed to comply with any of the provisions of the Code, any Employment Tribunal hearing the aftermath has the discretion to adjust any award by up to 25% (depending on which party was at fault). However, thankfully the tribunal will only make an increase or a reduction to any award if it considers it is ‘just and equitable in all the circumstances to do so’.
So how do you ensure any allegations are thoroughly and properly investigated?
Here’s my step by step guide:
1. Incident in breach of the Disciplinary Policy is reported/observed and raised. An investigating officer is appointed – where possible by someone other than the disciplining officer and someone not involved in the alleged incident.
2. The investigating officer takes a witness statement from the person who raised the issue. This should include date of the incident, time of the incident, location of the incident, exact nature/details of the incident as they recall, names of any other people who may have witnessed the incident. This should be without unreasonable delay, before recollections fade. The statements should be typed up and witnesses asked to check, sign and date them; giving them opportunity to make any necessary amendments to ensure accuracy.
3. It may be appropriate to meet with the employee themselves – please note there is no statutory right to be accompanied at an investigation meeting, nor a requirement to give notice of the meeting to the employee. At this meeting, explain the meeting is only an investigatory one and not part of the formal disciplinary process. Then they should be asked if they are aware of the company rules regarding the alleged breach, to explain what happened, provide any witness details and make any comments. Again these should be noted in writing and a copy sent to the employee after the meeting for verification/amendment.
Note – If the employee refers to other employee breaches in behaviour as is often the way (‘So and So did it so I didn’t think there was a problem’ etc, etc) thank them for the information, make a note of it and continue with the current investigation.
4. The investigating officer then must decide if there is a disciplinary case to answer and if the allegation is potentially gross misconduct. If it is a gross misconduct matter (i.e. something so great as to potentially terminate the contract summarily) this could mean that suspension is required to facilitate the remainder of the investigation. This period of suspension should be on full pay, it should be for as brief a period as possible and should be kept under review and it should be made clear that suspension is not considered as disciplinary action.
5. If there is a case to answer: your employee should be told that you are forwarding the case to a disciplinary hearing, that they will receive written notice and copies of all the investigation notes, and if the allegation is potentially gross misconduct, the employee may be suspended at this point. The investigating officer should prepare a pack of all documentation and a summary of the investigation with their recommendations for the manager conducting the disciplinary hearing. Remember the manager conducting the disciplinary should not have had any involvement whatsoever in the investigation to ensure objectivity.
6. If there is not a case to answer: you should tell your employee that you are satisfied with their explanation of events and that you have decided not to proceed with formal disciplinary proceedings.
So do you feel better able to handle an investigation?
Next the formal meeting…