The disciplinary investigation

Any employee can face the unsettling and daunting prospect of being incorrectly accused of wrongdoing at work and being subjected to a disciplinary investigation

It can happen to anyone because an employer has to take any allegation, true or false, that is levelled against an employee seriously.

The purpose of a disciplinary investigation should be to establish the[1 cited 9.1.24]

The investigation will determine if there is in fact any substance to any allegation of work-related wrongdoing.

An employer will usually initiate the formal disciplinary process if it is found that there is a case for a member of staff to answer.

But, if it is discovered that the employee does not have a case to answer, the allegation will be dropped.

However, it is not uncommon for an employee to face formal disciplinary action following an investigation, and then to later be cleared of wrongdoing at a disciplinary hearing.

A thorough and fair disciplinary investigation is the bedrock of a fair disciplinary process, and for employers getting it right is vital.

A recent case, once again, highlighted the cost to an employer when a disciplinary process is conducted unfairly.

A former bank employee who won his case for unfair dismissal after being fired for using the N-word during a training session, was awarded £490,000 at an employment tribunal[ 2 cited 9.1.24]

In judgment, the employment judge is reported to have said: “If the bank wanted to make a point, it could have given the claimant a warning. The whole purpose was to explore intention vs effect, and for the attendees to learn.”

A fair and thorough disciplinary investigation can play a fundamental role in helping an employer to avoid a subsequent claim for unfair dismissal[3 cited 9.1.24]

It can help to ensure the employer has a valid reason for dismissing an employee, based on the evidence gathered during the investigation, and to demonstrate that it acted reasonably and proportionately by considering all the relevant factors and circumstances.

An unwarranted or false allegation can have serious consequences for an employee. It can lead to stress, anxiety, depression and a loss of trust and confidence in an employer.

While any allegation that is substantiated can wreck a career, lead to dismissal or a formal disciplinary sanction being issued.

Allegations can come from various sources. A manager may raise a concern about an employee’s work, conduct or absence;  a colleague or a customer may make a complaint; or a whistle-blower may report serious wrongdoing.

Regardless of the source of an allegation, an employer must investigate it fairly and thoroughly, and adhere to the ACAS Code of Practice[4 cited 9.1.24]

The investigation is a crucial fact-finding exercise. It should collect all pertinent information to enable an employer to make an informed decision about the appropriate action to take.

Here we take a closer look at why employees may be under investigation at work, what the process should involve, and what happens during and after an investigation.

Reasons for Investigation

The main reason why an employer will conduct an investigation is in response to an allegation of misconduct made against a member of staff.

The type of an allegation that requires investigation, can vary.  For example:

Breach of company policy

All organisations should have clear and established policies that detail expectations around employee behaviour and workplace procedures.

If it is thought or feared an employee may have breached any company policy, an investigation can be started.

A breach of company policy can include an employee’s use of social media, actions at a work-related event, misuse of company resources or a breach of health and safety rules.

Criminal Offence

Conduct outside of the workplace can legitimately lead to an employee being subjected to a disciplinary investigation.

A fair investigation should always be conducted, even in cases where an employee is facing serious criminal allegations.

An employer should not automatically bypass the investigation process or dismiss an employee solely because they have been arrested, charged or convicted of a crime.

The Discipline and grievances at work: the Acas guide provides guidance for employers on dealing with such a situation. It advises that: the employer should investigate the facts as far as possible, come to a view and consider whether the conduct is sufficiently serious to warrant instituting the disciplinary procedure[5 cited 9.1.24]

If an employee is dismissed for a criminal offence, the reason will usually be misconduct (conduct being one of the five fair reasons for dismissal under s98(2) of the Employment Rights Act 1996)[ 6 cited 9.1.24]

Performance Concerns

In some cases poor performance or consistent failure to meet job expectations can lead to an employee facing a disciplinary investigation.

Employers may need to assess whether the issues are due to personal factors or if additional support, training, or disciplinary action is required.

The investigation, and establishing the facts in such cases, is important. It is because there  is a difference between poor performance and misconduct and usually in how they should be managed [7 cited 9.1.24]

The Investigation Process

The process will typically begin when a matter of concern has been reported regarding an employee’s behaviour or actions.

The investigator

A disciplinary investigation should be conducted by a person who is fair and impartial. Where practicable the person who does the investigation should not be involved or implicated in the matter being investigated.

The investigator should also have the appropriate skills and experience to carry out the investigation effectively and objectively.

An employer should ensure the investigator has enough time and resources to conduct the investigation thoroughly and promptly, and that they are supported and supervised throughout the process.

The employee

The worker who is under investigation should be informed as soon as possible.

It should be done at the point that an employer decides to open an investigation, unless there is a genuine risk the person may seek to influence the investigation or witnesses.

The employee should be told about the reason for the investigation and what the process will involve. The individual should cooperate with the investigation.

The employee under investigation should be offered support by the employer. If it is not offered, the employee should query what support is available if they are struggling to cope with the situation.

Gathering Evidence:

During an investigation, evidence should be sought to both support and refute any allegation.

Collecting evidence can include interviewing witnesses, reviewing documents or CCTV footage.

The investigator should be thorough and objective in working to establish the facts of any case.

After the Investigation

Following the conclusion of the investigation, the employer should decide on the appropriate action to take e.g. clear the employee, deal with the matter informally or arrange a formal disciplinary hearing.

An employee who faces no further action following an investigation may still need support to help them reintegrate back into the workplace.

Conclusion

Workplace investigations play a vital role in maintaining a fair, safe, and productive work environment.

Understanding the reasons behind investigations, the process involved, and the outcomes is essential for both employers and employees.

Open communication, fairness, and following established procedures are key elements in ensuring that disciplinary investigations are conducted effectively and contribute to a positive work culture.