4. Disciplinary Investigations
Carrying out an Investigation
If you have a potential disciplinary (or capability) situation it is essential to carry out an appropriate investigation. The areas for investigation will vary depending on the circumstances (see examples below).
The investigation will entail gathering evidence to substantiate (or otherwise) the allegation or complaints. It may even result in the conclusion that there is no need to move to formal disciplinary.
An investigation will entail gathering the facts. This may include looking at documents and letters; talking to witnesses and taking witness statements. It may also include evidence such as emails or other communications from customers, recordings of telephone conversations (e.g. if your system records calls), reviewing CCTV or other video evidence. It will basically be anything that can help you establish the facts (see below for some example).
If witness evidence is being relied upon it is necessary that the manager interviewing the witness, obtains sufficient detail in the statement. Managers should not necessarily take things on face value. For example, managers should clarify as much detail as possible and question any inconsistencies. Therefore if the statement refers to a particular incident of misconduct the witness should be encouraged to provide as much detail as possible such as the date and time, what happened (what did they see and hear), who else was present or in the vicinity at the time.
It is also necessary to consider who will carry out the investigation. In cases of serious misconduct the investigation should NOT ideally be carried out by the same person who will hold the disciplinary meeting and so an ‘investigating officer’ should be appointed where possible. This may not always be possible in small businesses or in some circumstances. For example, it may be wholly appropriate for a line manager to talk to one of their team about attendance or time keeping or about performance.
Note: always review your disciplinary procedure to ensure that you are following it. Ideally your procedure provides you with flexibility. Some procedures are quite prescriptive about who will hear a disciplinary or how many people will be on the disciplinary panel. This can be restrictive if people are not available and can also prolong matters. There is an example disciplinary procedure in the templates area if you do not have one in place.
Investigative Meeting
An investigative meeting is when you speak to the individual about the incident/matter as part of the investigation process BUT BEFORE any formal disciplinary meeting is held. This allows you to ask the employee about the incident/matter as part of your overall investigation before any formal meeting.
An investigative meeting gives an opportunity to put allegations to the employee and go through any evidence or documents before deciding if disciplinary action is required. Importantly it is not a requirement to present all the evidence to the employee at an investigative meeting or provide it to them beforehand (it is a requirement to send the employee any and all documents you want to rely on before a formal disciplinary).
Holding an investigative meeting can also help identify any further areas of investigation prior to a disciplinary meeting.
You do not have to give an employee notice of the requirement to attend an investigation meeting, neither do they have the right to be accompanied to one.
If an investigative meeting is held, it must be made clear that this is not a disciplinary meeting and only forms part of the investigation process.
In other situations this part of the investigation (speaking to the employee) may be part of the formal disciplinary meeting.
Be Thorough
Any investigation should be as thorough as possible given the circumstances. It is important to document every aspect of the investigation i.e. witness spoken to, statements taken, meeting notes etc. It is also advisable to ask the employee if they have any areas of investigation they wish you to carry out (e.g. this may include witnesses who can support the employee's side of events). An employee may challenge a dismissal if a reasonable and fair investigation is not carried out.
Employers should note that the burden of proof is a reasonable belief, and not beyond all doubt, so an investigation must be thorough enough to ensure that an opinion can be formed based on reasonable belief. If key facts are missing, then this will not be possible.
Note: it is also important to stay on track. Be clear about what you are investigating and don't get side tracked. A common response from employees is that someone else has done the same thing "why aren't you disciplining them". In this situation, you should point out that you are dealing with this individual's alleged misconduct. If the individual has evidence relating to misconduct of other employees, ask them to provide the information and deal with this separately.
Suspension Prior to Holding a Disciplinary Meeting
It may be appropriate to suspend an employee prior to a disciplinary meeting. However, always consider if this is necessary and confirm you have the contractual right to do so. Case law has held that a suspension is not a neutral act and therefore should only be considered if this is necessary (as otherwise it could allow an employee to resign and claim constructive dismissal). Consider alternatives such as temporarily transferring the employee to another area in order to achieve the same objective, and clearly document what alternatives you have considered.
Suspension should be considered where it would be a risk to the company or others if the employee continued to work (e.g. if there were allegation of sexual harassment, or theft/financial irregularities, or breaches of health and safety where a potential risk remained etc), or where it is important to remove the employee (e.g. they have been fighting). Suspension will be on full pay (see below).
It is recommended that you speak to the employee regarding the alleged misconduct, prior to advising them of their suspension. This allows you to get an initial response from them to the allegations. Suspension should be confirmed in writing. The length of suspension should be kept to a minimum but giving enough time for any investigation to be completed.
In most cases suspension will not be necessary, for example if the matter relates to an employee’s absence, time keeping or general performance. It will only be in serious cases of misconduct that suspension is normally considered.
Note: suspension will be on full pay unless there is a clear contractual clause otherwise. Even if there is a contractual right to suspend without pay, it is advisable to suspend on full pay during any investigation period as otherwise there could be an inference that the decision has been pre-determined or unpaid suspension could be seen as a disciplinary sanction itself and make the procedure unfair. It may be useful to have a suspension without pay clause in your contract of employment that you can invoke in exceptional circumstances. For example, if the employee fails to attend meetings without good reason or the process is prolonged due to the employees conduct.
Summary of suspension:
Remember, if not handled correctly suspension can amount to a fundamental breach of contract, which can make it possible for an employee to resign and claim constructive dismissal (if they have the appropriate length of service). You should not use suspension as a knee-jerk reaction and alternatives must be considered and fully documented. To minimise the risk you should consider the following:
- Does the contract of employment give you the right to suspend the employee?
- Speak with the employee regarding the allegations against them so that they can provide you with their initial response to the concerns.
- Do you have enough evidence to suggest that the allegations are sufficiently credible to merit further investigation?
- Is the suspension necessary? Is it either to prevent further wrongdoing or to ensure a fair investigation? If so, is there another position the employee can be temporarily transferred to in order to achieve the same objective?
Documenting an Investigation
It is important to document how you have conducted the investigation. (please also see the template investigation report) This will include:
- Taking written witness statements from employees or others
- Summarising who you have spoken to and when
- Including any other written documentation (letters, emails)
- Including any ‘paperwork’ that is relevant to the matter (e.g. audit trails, records etc).
- Include any other relevant evidence such as: computer records, text messages, CCTV or video footage, telephone recordings.
Your investigation should not only be about determining if the 'employee did it!' It is about gathering facts that could also support the employee's position.
Note: if a witness gives a verbal or written witness statement without you being present, it is strongly advised that you meet with the employee to go through what was said and document the meeting. This will demonstrate that you have not just taken a written or verbal statement at face value without questioning the individual.
Taking a witness statement
When taking a witness statement, you can either ask the employee to set out in writing what they saw and witnessed. If so ask them to include as much detail as possible including dates, times, places and confirm who else was present. You should then go through the statement with the individual and confirm any matters (you should make a record of this meeting and any additional notes). The employee should be asked to sign and date the witness statement once completed.
Alternatively, you can meet with the employee and go through what they saw and write out the statement for them. Again, ask details about times, dates and other witnesses. Once you have written out the statement, the witness should be asked to confirm it is a true reflection and you should ask them to sign and date it. Make a note of the time and place when you met with the individuals and keep any notes you take.
You can also record any meetings so that you have a full record of the meeting.
Confidentiality
It is important to maintain confidentiality throughout. To assist with this, you should ask anyone who is providing a witness statement to sign a confidentiality agreement. This helps the employee to understand the importance of confidentiality. You can also confirm that it is part of the procedure to the individual under investigation so that they are aware that you take confidentiality seriously.
Managers involved should also be reminded to keep matters confidential and not to discuss anything with other managers or anyone else.
Examples of Investigation
Absence
If there is concern about an employee’s level of absence the first stage of the investigation is to collate the employee’s absence record. This should include the reason and duration of each period of absence, and the actual days of absence.
This may demonstrate that there is a pattern to absence (the ‘Friday-Monday’ Syndrome) or that there could be an underlying medical problem (e.g. if the reason for absences are all the same).
Other reasons for absence (not just sickness absence) should also be collated (e.g. doctor/dentist's appointments, other appointments or situation where time off has been taken).
The employee’s absence record may also be compared (generally) with other employees (i.e. demonstrating that it is higher than other employees).
The employee’s absence records will form the basis of the discussion for the investigative or disciplinary meeting. Please see managing absence for further guidance.
Performance
If the matter relates to performance, the investigation should involve gathering information (and where possible) examples of where performance is below the required standard.
This may include errors that have been made, failure to communicate information, failure to meet agreed deadlines etc. It is essential that the ‘poor performance’ is defined, as the procedure will include confirming to the individual what performance levels are required.
Ideally you will have a job description and/or performance indicators that clearly set out the standards that are required. Sometimes this will be obvious (for example an accountant needs to be accurate with figures, a typist needs to pay attention to detail re layout, grammar and spelling). Sometimes it is not so obvious, and it is important that the employee clearly understands what is expected i.e. their level of performance required, their current performance and the gap.
It is always useful to have examples as this can help you and the employee understand where performance is not meeting the required standards.
Attitude
Very often ‘attitude’ is cited as being a problem. This can be where the employee is doing their job well, but the way they do it and their relationships with others is causing a problem. This is really a conduct issue as it is about how they are behaving.
It is important to define what it is about the employee’s ‘attitude’ in terms of their behaviour that is causing the problem/concern and what impact this is having on the business/other employees. It may be that they are being aggressive / passive aggressive. They may be dismissive of colleagues (or customers) or uncooperative.
It is important not to confuse attitude with personality types. If someone is a quiet person by nature, you cannot expect them to suddenly change their personality. Normally when there is an 'attitude' problem there has been a change in someone's behaviour e.g. they used to cooperate with colleagues and now they are dismissive and difficult to work with.
Conduct
It is important that an employee knows what conduct is unacceptable and the possible consequences of their actions. Documenting and communicating your standards, rules or a code of conduct is therefore essential.
Where an employee’s conduct is the subject of a disciplinary meeting, the investigation must identify the nature of the misconduct and as much information as possible must be gathered.
For example:
If an employee is rude to a customer, you would want to get a statement / letter / email from the customer if possible and a written statement from any employees who overheard what was said.
If an employee is continually late, you would need to have a clear record of their time keeping and any reasons given for their poor time keeping.
If you suspect an employee is fiddling their expenses you will want to gather documentary evidence of receipts, expenses claim or credit card receipts / statements etc.
If you believe the conduct amounts to ‘gross misconduct’ this would allow you to terminate employment, without notice (after following the full procedure). However, the conduct must be very serious and go to the root of the contract for dismissal to be justified. Conduct that may generally be considered as ‘gross misconduct’ includes matters such as theft, fraud or fighting. You should review your disciplinary procedure to confirm any matters that are detailed as gross misconduct. If you dismiss an employee for something that has not been highlighted in your disciplinary procedure as potential gross misconduct, this very well may be seen as unfair (because the employee was not made aware beforehand that such conduct could lead to dismissal).
Note: even in cases of suspected gross misconduct you must investigate and hold a formal disciplinary meeting before considering termination (please see guidance notes on disciplinary).
What investigation and material may be appropriate?
This is a list giving some examples of what documents or information you may want to collect during an investigation depending on the nature of the allegations. This list provides examples only:
- Your disciplinary procedure - to make sure you are following your own procedure and to review what is detailed as misconduct/gross misconduct.
- Training records
- Signed contract of employment
- Witness statements
- Vehicle tracker records / tachographs
- Time sheets / overtime sheets
- CCTV footage
- Video from a witness’s phone
- Photographs - e.g. photos of poor workmanship
- Policy documents - e.g. where it sets out what the company rules are around the matter
- Written procedures (e.g., expenses procedure)
- Computer records / internet history
- Company credit card / fuel card statements
- Absence records (including dates, days, and reasons)
- Financial records (expenses, bank accounts etc)
- Telephone call logs
- Door entry / alarm logs
- Emails from customers / witness statements from customers.