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How to conduct a disciplinary investigation
Two of the main reasons that employers end up in Employment Tribunals are a failure to follow a fair procedure and a failure to investigate properly.
Misconduct can come in many forms – stealing, turning up late to work or under the influence of drugs or alcohol, taking unauthorised absences, misusing company equipment or fighting with a colleague. It can be one trivial incident, repeated minor misconduct that progressively turns into a more serious offence or an act of gross misconduct.
Acts of gross misconduct are those acts which are so serious that they destroy the relationship of trust and confidence between the employer and employee, making the working relationship impossible to continue.
When dealing with employees’ misconduct, there are certain things you need to do in order to ensure that you are following a fair procedure. One of the most important elements is that the employer should conduct any necessary investigation to ascertain the facts of the case.
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8 things to keep in mind when conducting disciplinary investigations
Aim of investigations
The aim of a disciplinary investigation is to fact-find. When an allegation of misconduct is made, you need to know what happened, when it happened, where it happened, why it happened, whether anyone else is involved, and whether anyone else witnessed the incident(s).
Investigator’s role
Investigators need to consider evidence that both supports and challenges the allegations. This means that you are not just looking for proof of the employee’s guilt but also evidence that shows they didn’t commit the misconduct.
Sources of evidence
Each investigation will require different sources of evidence depending on the circumstances of the case, but it can take a variety of forms such as CCTV footage, attendance sheets, email correspondence, telephone or computer records, and witness statements.
Duration of the investigation
The law doesn’t specify the duration for an investigation. If you have no idea who’s responsible for the misconduct or there are conflicting accounts, a more rigorous investigation may be required. However, if you have caught someone red handed, less investigation may be needed.
Right to be accompanied
Employees don’t have a legal right to be accompanied to an investigation meeting. However, some employers do allow them to be accompanied by a work colleague or Trade Union representative.
Suspension with pay
If considered necessary, you may suspend the employee with pay while the investigation is underway. This action should only be taken in certain cases, for example if there is a risk that the employee could tamper with evidence or continue to pose a risk to your organisation.
However, the time they are suspended for must be as short as possible and kept under review. It must also be made clear to the employee that this is not disciplinary action.
Skipping investigation
You must conduct any necessary investigation before proceeding to any disciplinary hearing.
People involved in the disciplinary process
The investigation and any subsequent disciplinary or appeal hearings should be conducted by different people. However, depending on the size of your organisation, this may not always be possible.
If you find yourself in this situation, our Employment Law Advisers can help you to decide who is best placed to take charge of each stage. Alternatively, our HR Consultants can conduct investigations, hearings and appeals on your behalf to provide independent support and expertise.
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Need support?
For practical advice on investigating misconduct allegations in your workplace, including compiling a fair and factual investigation report, contact WorkNest today. Our Employment Law and HR specialists can guide you through the investigation process and, if you prefer, can even conduct them on your behalf to take the pressure off.
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