Who? What? When? Where? Why? Investigating Disciplinary Allegations

Employment Law 9th October 2015

Disciplinary investigations come in all shapes and sizes….

We recently assisted an employer with a disciplinary hearing, in which the deciding factor was the manner in which 3 sheets of A4 paper had been folded.  Honestly.

The allegation was that an employee had cheated in a professional examination, by smuggling sheets of paper containing information into the exam room.  Although other people present in the room had been interviewed, the most important piece of evidence turned up by the investigation into the allegation, was the sheets of paper themselves.

Just a few weeks earlier, we’d assisted with another investigation into allegations of excessive personal use of company computer facilities.  Regrettably for the employee, a simple internet usage report from the company’s IT consultant displayed hours and hours of Facebook and YouTube activity with a vague smattering of work-related activity every now and then. Faced with that evidence in the ensuing disciplinary hearing, the employee was unable to provide a convincing explanation for his actions his dismissal was a relatively straightforward affair.

Contrast that with an investigation we conducted last year into alleged workplace bullying in a small company.  Everyone was somehow linked to everyone else, hence my involvement as an independent investigator.  There was no “smoking gun”, the evidence was all collected by interviewing witnesses.

Three very different situations with one thing in common.  The matter needed to be investigated before action could be taken.

Easier said than done…

It is well established in employment law, that potential disciplinary matters and grievance complaints should be investigated, in order to establish facts, enable the matter to be dealt with fairly and minimise the tribunal risk to the business.

For experienced employment advisers, it’s very easy to allow that mantra to trip off the tongue to a client.  The meaning and the method may be second nature to the adviser, but the client can be left wondering…. Who? What? When? Where? Why?

There is no universal approach.  The law expects that an employer will carry out such enquiries as are reasonable and appropriate in the circumstances.  It depends what is alleged and what is accepted or disputed.  The nature and extent of the enquiries may further depend on the size and resources of the employer.

The employer is expected to establish facts on the so-called “balance of probabilities”.  In plain English – “is it more likely than not that this is what happened/how it is”

In some ways, having a legal approach that allows for differences in circumstances is a good thing.  It acknowledges that smaller employers have more limited resources and makes allowances for that.  It allows the employer to approach the situation with some flexibility.  However, for a small and busy business, the vague concept of a “reasonable investigation” can be at best daunting and at worst terrifying.

Rules of thumb

The following can be useful rules of thumb, whether it is a disciplinary allegation or a grievance that is being investigated:

What? When? Where? – What is alleged? Allegations should be separated and listed, with dates and if appropriate, locations.  Sweeping statements such as “financial irregularities” or “inappropriate behaviour” without further detail, should be avoided.

Who? – are there witnesses or other knowledgeable people who can give an account of what has happened.  Bear in mind personal relationships or tensions, as these could distort evidence.

Why? – Could the subject of the allegations provide an explanation which would resolve the matter?

The investigation should be conducted by a manager who is neither involved in the matters alleged, nor who will have any involvement in any subsequent disciplinary or grievance hearing.  This may be difficult to achieve in a small organisation and the employer may choose to outsource the investigation, or the subsequent hearing, to an independent adviser.

The employer may not want to outsource the investigation but needs to be confident about the steps they should take.  In those cases, an external adviser can set out an investigation framework for the employer to follow, without becoming directly involved.  This could be a cost effective option for the employer who has management resource available to conduct the process but is not clear what is expected of them.

In all cases, the employer should make sure they document the investigation process, to use as evidence if required in a subsequent appeal or tribunal case.

If you are out of your depth, we can help

If you need to conduct an investigation into a disciplinary matter or an employee grievance but don’t know quite where to start, please call us on 01604 763494 or fill in the contact form here and one of the team will contact you for a no-obligation discussion.

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