Disciplinary investigations can be difficult for employers to get right but getting the process wrong can be damaging to business, costly, and can result in potential employment tribunal claims.
At Avensure, most of the queries we receive from our clients relate to conduct and disciplinaries. From lower levels of misconduct such as lateness to the most serious allegations of gross misconduct such as theft, it’s true that there are many common threads to disciplinary matters, it’s also true that no two disciplinary cases are ever the same. This means that however experienced you are at dealing with disciplinary issues and conducting disciplinary investigations, the potential for error is high.
In this article, we look at 5 of the most common mistakes employers make when investigating disciplinary allegations and how to avoid them.
What is a Disciplinary Investigation?
When there is an allegation of misconduct, irrespective of the severity, employers have a duty to conduct disciplinary investigations.
The person investigating the allegations is there to gather the evidence and weigh up any genuine mitigation behind the allegations. If the person conducting the disciplinary investigation meeting and the allegations conclude that there is a disciplinary case to answer, it will then progress to a formal disciplinary hearing.
Therefore, the investigation stage plays a vital role in ensuring that any formal disciplinary investigation procedure is fair and reasonable.
Mistake #1: Time Delays – The Consequences of Procrastination in Disciplinary Investigations
Business owners are busy people and disciplinary investigations can very quickly slip down the list of priorities. This is understandable but it can also be highly problematic, especially when dealing with allegations of gross misconduct.
Cases of gross misconduct involve circumstances where the trust and confidence placed in an employee is in jeopardy owing to the severity of their alleged actions. There is often a requirement to suspend an employee from duty whilst a disciplinary investigation process is carried out. Where this process is delayed and the employee is allowed to continue working, this can impact the fairness of any future decision to dismiss following the conclusion of the disciplinary procedure.
The disciplinary investigation stage is when evidence is collated, and this can include witness statements. A witness’s memory of events can become skewed very quickly, especially if they have had the opportunity to discuss what they have witnessed with others. Therefore, its imperative that disciplinary matters are investigated at the earliest opportunity. If an incident occurs which involves an allegation of gross misconduct, it’s vital that you contact Avensure immediately because what happens in those early stages of the disciplinary investigation procedure can have a significant impact later down the line.
Mistake #2: Avoid Being the ‘Judge, Jury, and Executioner’ in Disciplinary Investigations
It’s important to be fair and unbiased when it comes to investigating disciplinary matters and compiling your disciplinary investigation report.
One of the ways to get this wrong from the outset is to have the same person asking the disciplinary investigation questions, chairing the disciplinary hearing and then being the person to chair any possible appeal. Its also vital to ensure that the persons involved in disciplinary proceedings have the authority to do so.
The person responsible for the disciplinary investigation process should not be the person carrying out the disciplinary hearing. When embarking on a disciplinary meeting at work consider the following:
- Is the person conducting disciplinary investigations also a witness? If so, they should not be involved in any stage of the disciplinary investigation procedure- apart from being asked to provide a witness statement.
- Is the Managing Director the only person with authority in the organisation? If the answer is ‘no’, they should not be conducting workplace investigations and ideally should not be involved in the disciplinary stage either. If your structure allows, keep the most senior person out of the disciplinary investigation process and set them aside to hear any appeal. Otherwise, you will encounter a situation where someone with a lower level of authority is potentially being tasked with overturning the decision of the MD, which they are not likely to have the authority to do.
- Is the person conducting a disciplinary investigation impartial? Have they just been named in a grievance involving the member of staff who is being investigated, or are they related to them? If so, it’s better not to involve them in conducting an investigation at work.
The above is very difficult for smaller businesses or where the person under investigation happens to be in a senior role. Exceptions can be made under these circumstances, and we can discuss this with you to help you decide the best way of managing a disciplinary investigation procedure under these circumstances.
Mistake #3: Avoiding Bias Disciplinary Investigations- Ensuring Fairness and Impartiality in Disciplinary Proceedings
Bias can creep up on the most experienced HR professional and to some extent, it is human nature but there are ways to ensure that it doesn’t creep into a disciplinary investigation.
The first thing is to ensure that the right person is carrying out the disciplinary investigation meeting, as we have set out under point 2.
It’s also important, when carrying out a disciplinary investigation, that you remember that you are investigating allegations. The aim of an disciplinary investigation meeting is to establish the material facts and gather evidence, this evidence must include evidence that not only supports the allegations but also the evidence that does not.
For example, if you are investigating an allegation that there has been a physical altercation between two members of staff, it’s important that all the witnesses present are asked to provide a statement. That includes the person who was sat in the kitchen on their lunch break, facing the opposite direction with their earphones in. Their statement will say where they were, what they were doing and that they didn’t see or hear anything- that is their evidence, and it needs to be included.
It’s also important not to lead witnesses and let them tell you what they saw or heard in their own words. Compare the following ways of approaching a witness:
1) ‘There has been an allegation of an incident on Tuesday at 3 pm involving two of your colleagues. I am investigating the matter and I understand you may have been present. Were you there and if so, did you hear or see anything?’
2) ‘Steve punched Clive in the face on Tuesday at 3 pm in the kitchen. I know you were there, tell me what you saw?’
Both questions may get the same information, but question b is clearly an example of leading the witness and should be avoided. Keep your disciplinary investigation questions open-ended as in example a.
Don’t allow a witness to indulge in hearsay. If they didn’t hear or see anything that is fine but they shouldn’t include information they’ve heard on the grapevine in their statement. This is also why it is important to speak to witnesses at the earliest opportunity in a disciplinary investigation meeting and instil in them the importance of not discussing the matter with anyone else.
The employee who is facing an allegation of misconduct is also a witness- don’t leave them out! Invite them to an informal disciplinary investigation meeting where they can put forward their initial responses and air any potential mitigation.
Mistake #4: Failing to Document the Disciplinary Investigation- The Power of Accurate and Detailed Record-Keeping
Poor note-taking! The disciplinary investigation stage is informal but that doesn’t mean it shouldn’t be documented.
When you speak to the employee under investigation, make sure minutes are taken. Have a note taker if you can or if you haven’t got a note taker but find taking minutes difficult, ask the employee if you can record the disciplinary investigation meeting.
When interviewing witnesses, again, full minutes should be taken.
Disciplinary investigation meeting minutes, and witness statements (or witness interviews) should always be signed and dated.
A good paper trail can be the difference between a won and lost tribunal!
Memories fade very quickly and if you are in the unfortunate position where a case leads to an employment tribunal, bear in mind this may be months or even years down the line. You will lose credibility very quickly if your record-keeping is poor and you have to rely on a distant memory.
Mistake #5: Skipping the Disciplinary Investigation – Why Every Allegation Deserves a Thorough Examination
The biggest mistake employers can make when it comes to disciplinary investigations is not to carry one out at all.
There could be a variety of reasons for this, perhaps the misconduct is low level, or the employee has admitted the allegations, so an investigation seems pointless- whatever the circumstances, it is never advisable to skip this vital step.
A disciplinary investigation stage is part of a fair disciplinary procedure, so if you skip it, you are technically breaching your own rules and procedures (a bit ironic if it’s a breach of rules and procedures the employee is being disciplined for!).
Even if the employee has admitted to the allegations, or on the surface it appears to be an ‘open and shut case’, by failing to investigate you miss the bigger picture. For example, the employee may admit the allegations, but it turns out they were instructed to do what they have been accused of or someone else was also involved. There may be training issues, perhaps they have a medical issue which is affecting them or there is a witness they consider could provide useful evidence- all of these factors should be picked up at the disciplinary investigation stage, not the disciplinary.
A disciplinary investigation may seem like a waste of time on occasion but skipping the investigation stage could end up costing you more time in the long run.
And finally…don’t underestimate the importance of a timely disciplinary investigation, regardless of the severity of the allegations and please ensure you speak to Avensure at the earliest opportunity and take advice throughout every stage of a disciplinary procedure.
Need Support With Disciplinaries?
If you need support with disciplinaries, require HR advice or have other Employment Law issues, contact us today. For support Click Here: Avensure Contact!