UK: What Makes A Disciplinary Investigation Reasonable?

Last Updated: 29 March 2012
Article by Eugene Wojciechowski

This article was first published in People Management on 18 October 2011:
http://www.peoplemanagement.co.uk/pm/articles/2011/10/what-makes-a-disciplinary-investigation-reasonable.htm

The law doesn't set out clear rules on how to carry out disciplinary investigations, but employers still need to take steps to act fairly and impartially

There is no right or wrong way of conducting disciplinary investigations. Provided there are no contractual requirements or agreements with trade unions or other employee representatives as to how investigations need to be carried out, it's a question of whether the employer's handling of the situation was reasonable or not. But what does an investigation need to include to be seen as reasonable?

Case law does not provide a full answer to this question. However, a reasonable investigation would be expected to be even-handed and confined to the facts of the case. It would begin with a prompt search for all the relevant evidence, and not just any evidence that support allegations against an employee. Those carrying out the investigation would also be expected to take statements - for example, from the employee's colleagues or clients - and to keep accurate records of all actions they have taken.

That is the approach recommended by the Acas guide on Discipline and grievances at work and employers following it are unlikely to go far wrong. If, however, they fail to do so and the employee concerned is ultimately dismissed, there is a high risk that a tribunal will find that dismissal unfair.

It is also a good idea to remind employees at the outset that an investigatory meeting is not a disciplinary hearing. In fact, it is the outcome of the investigation that is likely to determine whether or not a disciplinary hearing is held. By holding investigatory meetings only when appropriate and not as a matter of course, employers may find they can manage investigations more quickly and cheaply.

Where employees ask to be accompanied at an investigatory meeting by a work colleague or trade union representative, they may be reminded that they do not have any right to be accompanied at this meeting - provided there is nothing in the organisation's policies to the contrary.

A question that often arises at the beginning of disciplinary investigations is whether to suspend the employee on full pay and benefits. The Acas guide recommends suspension where working relationships have broken down or there is a risk that evidence may be tampered with. It is normally also sensible to suspend the employee where the allegation is a very serious one that may amount to gross misconduct and result in dismissal. If the employee is allowed to continue working during the investigation, the seriousness of the allegation may well be challenged at a later stage.

It should be made clear to employees that suspension does not mean they are assumed to be guilty and that it is not a disciplinary sanction. However, periods of suspension should be as short as possible as delays may make an otherwise fair dismissal unfair.

When reviewing how best to conduct disciplinary investigations employers should note the following points:

  • The person in charge of the investigation should not then make the disciplinary decision – in most cases two people should be involved.
  • The person investigating the matter should be seen as impartial.
  • As far as is reasonably possible, the allegations should remain confidential.
  • The allegation should be put to the employee, who should also be supplied with any relevant documentation, such as witness statements, before the meeting and be given time to prepare/
  • The investigating officer should ask open questions so as to avoid implying that the employee is guilty. For example, saying to the employee: "You did it, didn't you?" when referring to an allegation is unlikely to go down well with an employment tribunal.

Employers should not, however, get too bogged down in rules and regulations when carrying out disciplinary investigations. As long as they follow well drafted disciplinary policies and the basic principles outlined above, their investigations are likely to be regarded as reasonable.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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