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Lynsey Blyth’s article first appeared in CIPD’s People Management, published here on 30 October 2024. In the article, Lynsey answers some of the common questions that arise about disciplinary processes, including the role of the investigator, who should conduct the investigation and chair the disciplinary hearing, whether an investigation is actually needed, what it should involve, refusal to engage, and the employee’s rights.
Conducting a thorough and objective investigation is a key part of ensuring a fair disciplinary process. This will be essential where misconduct ends in dismissal, as any resulting unfair dismissal claim will likely succeed where the investigation is inadequate.
Who should conduct the investigation?
It should be someone more senior than the accused employee (however, bear in mind more senior individuals may be needed for a hearing and/or appeal) and someone not involved in the allegations.
Can the investigator also chair the disciplinary hearing?
Unless your business is particularly small or the accused is particularly senior and there is no-one else to do it, no. The Acas code states that ‘where practicable, different people should carry out the investigation and disciplinary hearing’.
Is an investigation needed even when an employee has admitted misconduct?
Yes. Although it’s likely the investigation won’t take as long, the investigation could unearth mitigating circumstances or simply cast doubt over the truthfulness of a confession.
What is the investigator’s role?
Primarily to gather and consider evidence about what did (or did not) happen. They should establish the facts by reference to the available evidence and also identify what cannot be established. The investigator should keep an open mind and be objective and balanced, looking for evidence which supports as well as weakens the case against the accused employee. They should not determine guilt or sanctions.
How long should an investigation take?
This is fact-specific and will be heavily influenced by the nature and gravity of the allegations, the volume and complexity of available evidence, the number of witnesses involved and the need to preserve confidentiality. Essentially, the more serious the allegations or the more people/evidence involved, the longer the investigation will likely take.
However, it should be conducted ‘without unreasonable delay’ (Acas code) and within the timeframes set out in the employer’s disciplinary policy. Failure to complete a fair and thorough investigation in a timeous fashion could well render the investigation process and any subsequent dismissal unfair.
What should an investigation involve?
Again, this is highly fact-specific. Initially, consideration should be given to the allegations and all evidence relating to these should be sought. This may involve speaking to the employee making the accusations (if relevant) and witnesses, reviewing CCTV footage, obtaining copies of documents/emails/call records etc.
Once collated, the next step is to speak to the accused employee. For an investigation to be reasonable, the allegations must be clearly put to the employee, alongside all the evidence, and they should be given sufficient time to formulate a response. The employee must be given advance notice of the meeting and time to prepare. It is thus almost always sensible for the investigator to hold a disciplinary investigation meeting with the accused employee (sometimes more than one investigation meeting may be needed).
Does an employee have the right to be accompanied to a disciplinary investigation meeting?
No, unless the disciplinary policy stipulates so, or this is needed as a reasonable adjustment for a disability. However, employers can allow the employee to bring a companion if it may assist the parties with the meeting. Clear rules/boundaries should be set in relation to the companion’s role.
What happens if the employee under investigation refuses to engage?
This should be explored by the investigator – is there a legitimate reason or are they being uncooperative? The employer will need to consider if it can continue with the investigation without the employee’s input. It may be appropriate to invite the employee to produce a witness statement instead of attending an investigation meeting. All attempts to engage with the employee should be documented so there is a proper paper trail. Ultimately, the employer may decide to simply proceed, but the investigation should be particularly thorough.
Given the Labour government plans to introduce unfair dismissal protection from day one for all workers, it is crucial that employers ensure their managers receive proper training and are familiar with the disciplinary investigation process.
Should you wish to discuss any of the issues raised in this article, please contact Lynsey Blyth.
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