A Beginner’s Guide to Disciplinary Procedures – Part 2- Investigations
Last week in part 1 of our disciplinary guide, we focused on what misconduct is and examined the different types of misconduct which may result in formal disciplinary action being taken against an employee.
This week we focus on the investigation stage of a disciplinary process. We set out what its purpose is and why it is so important to ensure a fair disciplinary process.
Building a house without foundations…
A disciplinary process without an investigation stage is akin to a house without foundations- weak.
The investigation stage is where the facts behind the allegations against an employee are examined. The person appointed to investigate disciplinary allegations is concerned with establishing the facts, i.e., the ‘who’, ‘what’, ‘when’ & ‘where.’
You should find out if there is any genuine mitigation which may help explain what is alleged to have happened.
The ‘why’ at this stage is none of your business.
The investigation meeting
This is the first step in investigating any disciplinary allegations.
This meeting is informal, so the right to be accompanied doesn’t apply and you needn’t invite an employee to an investigation meeting in writing or give notice, unless your disciplinary procedures state otherwise.
Stick to direct questions. Let the employee know what the allegations are and make clear that the matter is under investigation. Let them know that you are speaking to them to ascertain their version of events so as to assist you with that investigation.
Does the employee have a right to see the evidence or know the names of any witnesses at this stage?
No. There is no requirement to produce evidence at this stage or name witnesses.
You should certainly ask the employee if there are any witnesses, they would like you to speak to but you must stress that they should not go off and start investigating and talking to witnesses themselves.
Should I have a note taker in the meeting?
Minutes will need to be taken in an investigation meeting, even though it is informal. This serves as a record that you have carried out this important stage and it is also something we here at Avensure will need you to provide.
If you can have a note taker with you then great but it’s not essential. The main thing is that minutes are taken.
Please see our previous article on taking minutes here.
Who should conduct an investigation meeting?
Someone with the appropriate level of authority, especially if a suspension from work is required. Please see our previous article on suspension from work here.
The main thing is to try and ensure that whoever does the investigation, they don’t go on to conduct the disciplinary hearing. Please note- though there may be exceptions for very small businesses.
Remember- you are investigating allegations
This is very important and key to ensuring the investigation is fair.
Remember- You are not there to prove the case against an employee or dig up the dirt, trip them up and so on.
When carrying out a disciplinary investigation, you should focus on the whole picture, which means information that supports the allegations and that which does not.
If you go into an investigation with a biased mindset your investigation will be biased, and this will likely trigger the following:
- If your investigation is biased, the findings of that investigation will also be biased.
- Bias is the greatest factor in ensuring an employee is not treated fairly, if the employee is not treated fairly at the investigation stage, it sets the tone for any formal disciplinary proceedings which may follow.
- A biased investigation results in an unfair disciplinary stage and decision
- If that decision is a dismissal, this could result in a costly tribunal claim
Don’t fall down the ‘rabbit hole of bias’- get this stage right and don’t be tempted to rush- it will take as long as it takes.
In summary- An investigation process should be:
- Keep an open mind- focus on establishing the facts, both for and against
- Ensure they are carried out by someone with appropriate level of authority
Next week– in Part 3 we focus on gathering evidence and obtaining witness statements in a disciplinary process. We will also look at the type of mitigation that can come up during an investigation and how this should be handled.
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