- Conduct investigations promptly
Employment tribunals don’t look favourably on long delays in a workplace investigation. (See Dr Lim v Royal Wolverhampton Hospitals NHS Trust). It is important to instigate an investigation promptly. This ensures that witnesses’ memories of events are fresh, and evidence is still available. Any suspension needs to be reviewed regularly, and not continued for longer than necessary. Where the employee goes off sick during the investigation, part of the investigation can be completed whilst they are off sick, such as witness interviews. If the absence continues you may wish to ask an occupational health professional whether the employee is able to attend an interview/ hearing despite being unfit to work. Often it is in the employee’s best interest that the investigation is completed quickly.
- Appoint an appropriate investigator/ hearing manager/ chair of appeal
An investigation needs to be fair and objective, and this needs to be reflected in the choice of people who will lead the different levels of the case. The manager investigating a disciplinary case should be an unbiased manager rather than the immediate line manager. Equally, where the size of the organisation allows this, the investigating manager, hearing manager and chair of appeal should be different people. It is advisable to train investigating managers to avoid any procedural errors. Where the size of the organisation makes it difficult to find an unbiased investigator, an external investigator can be engaged.
- Instigate a fair and objective investigation
It is a common failure of disciplinary investigations to restrict the amount of witnesses that are interviewed. There is often a bias towards interviewing reliable witnesses for the manager. It is equally important to interview witnesses that are likely to provide evidence in favour of the employee. The investigating manager should not be presented with expectations by management of the expected outcome of the investigation but be as unbiased as possible.
- Follow policies and procedures
If you have a disciplinary or grievance policy, make sure that you keep to the procedure outlined. This relates especially to any time frames that are stated in your policy, such as notice for interviews. If your policy states the level of staff that will deal with an investigation, hearing or appeal, make sure you stick to this.
- Collect sufficient evidence
Make sure you collect any hard evidence that is relevant. This can include time sheets, IT logs or CCTV footage, written work procedures, supervisory records, training records etc. I have come across cases where the investigating manager failed to check timesheets and the employee could prove at hearing that they had not been working on the day of the alleged misconduct. Equally, written work procedures are good evidence that an employee was aware/ not aware of how things were supposed to be done.
- Provide the employee with the full allegations against them
When instigating an investigation against an employee it is important that you inform the employee in writing of the allegations against them. If the allegations change or new allegations come to light during the course of the investigation, you also need to inform your employee in writing. The employee also needs to be informed of the possible outcomes of the case (see Gurnett v ASOS.com Ltd ). It should not come as a surprise to the employee that dismissal is a possible outcome of the disciplinary case.
- Provide the employee with the opportunity to defend themselves
Even if there is clear evidence, such as CCTV footage showing theft, it is important that the employee has sufficient opportunity to defend themselves. They should be interviewed after being informed of the allegations against them. They should also have the opportunity to present evidence in their favour and call witnesses at the hearing as well as asking questions of all witnesses. Prior to the hearing they need to be provided with all the evidence collected against them so that they can prepare an appropriate response.
- Prepare a balanced report
The final report needs to weigh up both the evidence against and in favour of the employee. This will enable the hearing manager to conduct a fair hearing, ask the right questions and come to a fair decision. Consider providing training to your investigating manager. A common mistake by the investigator is to make a decision regarding the sanction in the report. Whilst the investigator should indicate whether there is a case to answer or not, only the hearing manager can decide the outcome of the case. A further error would be for HR to influence the report and recommendations of the investigating manager. Whilst they can advise on procedural matters they should not alter the findings of the report (see Ramphal v Department of Transport).
- Issue adequate and consistent sanctions
Any sanction needs to be in proportion to the gravity of the offence. Unless you are dealing with gross misconduct or the employee already has a live warning, you should be looking at a warning rather than dismissal. Be guided by any definition of gross misconduct in your disciplinary policy. Sanctions need to be applied consistently across the organisation. If you have previously provided a first warning to employees for similar offences, it will be hard for you to justify a dismissal.
- Provide an employee with the opportunity to appeal
Your employee has the right to appeal against any formal decision, not just dismissal. Make sure that you inform the employee in writing that they have the right to appeal. This should be a standard clause in the decision letter you sent to your employee. Where the size of organisation allows this, the appeal manager should be different from the hearing manager.