This memorandum considers the requirements for a fair investigation as part of a disciplinary process at work, including what amounts to a reasonable investigation, the different roles of the various participants (including HR), how much investigation is required, the form the evidence might take, and the contents of the investigatory report. It is intended to assist HR practitioners and managers to avoid the pitfalls which might take the investigation outside the "range of reasonable responses" test applied by the employment tribunals when considering whether a fair procedure has been followed prior to taking the decision to dismiss.
Requirement for full and fair investigation
If an employment claim is made for unfair dismissal, the Employment Tribunal will be considering whether the employer acted reasonably or unreasonably. Whether an employer acted reasonably will be assessed objectively: did the decision to dismiss fall within the range of reasonable responses that a reasonable employer, in those circumstances and in that business, would have adopted (the "range of reasonable responses" test)?
This puts an obligation on employers to follow a fair procedure before taking the decision to dismiss. In misconduct cases, the relevant procedure is known as the "Burchell Test" and comes from a case involving a British Home Stores employee who was dismissed for dishonesty. The Burchell test requires an employer to be able to demonstrate that, before taking the decision to dismiss:
- it entertained a suspicion amounting to a belief in the employee's guilt;
- it had reasonable grounds on which to base its belief; and
- it had carried out as much investigation into the matter as was reasonable in all the circumstances when it formed its belief.
The Burchell test therefore puts the focus very much on the reasonableness of the investigation.
Planning and roles
Time taken to plan the investigation and the subsequent disciplinary process from start to finish will be time well spent. At its most basic, this means:
- deciding who will take overall charge of the process (for example a director, another member of the senior management team, or HR);
- familiarising yourself with the requirements of your disciplinary procedure; and
- 3. deciding who will carry out which role in the process bearing in mind that, ideally, you will need four people: someone to take overall charge of the disciplinary process; someone to conduct the investigation; someone to act as decision maker at the disciplinary hearing; and (potentially) someone to conduct an appeal.
If your disciplinary procedure sets out who is to conduct the investigation, then that person should normally be appointed to carry it out unless they are conflicted in some way, for example they are a key witness to the misconduct. If the procedure is silent, you can choose someone appropriate. This could be the employee's immediate line manager, or, if particular skills are needed to carry out the investigation (such as IT or Finance), someone with those skills. Alternatively, and this often happens, HR can be asked to carry out the investigation.
In a small business with limited resources it may not be practicable for all roles to be held by different individuals. However, where employers are sufficiently well-resourced to hire external help (such as an independent investigator) this should be seriously considered if, otherwise, a process might lack objectivity or prejudice an employee.
The role of HR
Appointing a member of HR to carry out the investigation can work in a larger organisation where there is an HR team rather than a single person in the role. However, if you have only one person carrying out an HR function in your office and you appoint them as investigator, this can cause problems. For example, their role as investigator may clash with the role they might otherwise play at the disciplinary hearing, such as taking notes of the hearing and answering questions on procedure. Also, HR is usually the point of contact for the employee under investigation. If your HR representative has carried out the investigation, the employee may feel uncomfortable relying on them for support in the disciplinary process which could well close down a line of communication.
If you appoint someone from outside HR to investigate, there is no reason why they should not seek advice from HR in relation to the investigation. However, any advice should be limited to answering questions about law, procedure and process. HR must not interfere with the investigator's conclusions. If they do, this could well lead to a finding of unfair dismissal, such as in the case where a UK Health Trust allowed its HR adviser to review and amend the investigator's findings. His amendments were extensive and very detrimental to the employee. The court held that there is an implied term in every employment contract that an employee has the right to a fair disciplinary process and went on to find that the Trust had breached that right by allowing the HR adviser to interfere in the way he had.
The investigatory report has to be the product of the case investigator. If HR (or any other person) interferes with the report, this is likely to lead to a breach of the implied right to a fair disciplinary process.
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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.