Disciplinary investigations: get it right or you’ll end up investigating the investigation

Presumption: no need for an investigation meeting, right?

Why? The evidence stacks up like this:

• We have a witness that saw an employee logged on to social media;
• This was on a works computer;
• It was in working hours, and;
• We have screen shorts of the unsavoury grotesque offensive photographs.

The dismissed employee in his disciplinary hearing was adamant that he wasn’t viewing the photographs in question. He admitted that he was on his social media account and he apologised, explain that the snooping employee had to click on several different tabs to see the photographs. Yet regardless of the excuse, he was dismissed in any event for gross misconduct and viewing grossly impropriate photographs at work.

During the tribunal the employer was pressed repeatedly on their investigation, with questions on the robustness of the process undertaken. Eventually the employer admitted that the snooping employee had had to do some ‘digging’ to get to the photographs. Although in possession of the photos, the dismissed employee was not viewing the images in work time, had not accessed them and apparently he had just been tagged in the photo which is why it was on his social media account.

On appeal the decision was reversed and the employee was reinstated with a warning issued because he was on his social media profile during working hours.

This is an example of a case where a little investigation could have saved a lot of wasted time for the HR department, the managers and the employees in question. When conducting investigations, employers need to speak to all the relevant witnesses before rushing into a disciplinary. Had there been an investigation meeting with the employee about his social media account he would in all likelihood have cleared up the issues from the start.

On a side note, although the photographs may have been unsavoury grotesque and offensive, what the employee had on his social media page, outside of work, that wasn’t linked to his employer in any way, is really his own business (provided there was no illegal activity). Employees have personal and private lives and they are really just that, personal and private.

There is so much more than just the above that you have to get right with regards to disciplinary action, from phrasing the allegations correctly on the invite letter, following a fair process, having the evidence to support the allegations and making the right decision on the evidence before you, providing detailed written reasons whilst making sure it is always fair to the employee at every stage. The many pitfalls make the process appear lengthy and complicated, but it can be simplified with the right expectations, some advice and processes in place.