Two of the main reasons that employers end up in Employment Tribunals are a failure to follow a fair procedure and a failure to investigate properly.

Misconduct

Misconduct can come in many forms – stealing, turning up late to work or under the influence of drugs or alcohol, taking unauthorised absences, misusing company equipment or fighting with a colleague. It can be one trivial incident, repeated minor misconduct that progressively turns into a more serious offence or an act of gross misconduct. Acts of gross misconduct are those acts which are so serious that they destroy the relationship of trust and confidence between the employer and employee, making the working relationship impossible to continue.

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When dealing with employees’ misconduct, there are certain things you need to do in order to ensure that you are following a fair procedure. One of the most important elements is that the employer should conduct any necessary investigation to ascertain the facts of the case.

Aim of investigations

The aim is to fact-find. When an allegation of misconduct is made, you need to know what happened, when it happened, where it happened, why it happened, whether anyone else is involved and did anyone else see what happened.

Investigator’s role

Investigators need to consider evidence that both supports and challenges the allegations. This means that you are not just looking for evidence that demonstrates their guilt, but also proof that shows they didn’t commit the misconduct.

Sources of evidence

Each investigation will require different sources of evidence depending on the circumstances of the case, but it can take a variety of forms such as CCTV footage, attendance sheets, email correspondence, telephone or computer records and witness statements.

Duration of the investigation

The law does not specify the duration for an investigation. You may need to complete a more rigorous investigation if you have no idea who is responsible for the misconduct. However, less investigation may be required if you have caught someone red-handed.

Investigations meetings

The investigating officer may need to hold investigation meetings with the person accused of misconduct and anyone else that has relevant information about the incident. This involves asking questions, trying to get them to open up, gauging if they are being evasive and taking note of when they refuse to answer or give detail.

Some may be reluctant to talk, whilst others may be only too happy to spill the beans. In either case, you need to think about their motivations and see if there are any inconsistencies.

Right to be accompanied to investigation meetings

Employees do not have a legal right to be accompanied in an investigation meeting. However, some employers do allow them to be accompanied by a work colleague or trade union representative.

Suspension with pay

If considered necessary, you may suspend the employee with pay while the investigation is underway. This action should only be taken in certain cases, for example, if there is a risk that the employee could tamper with evidence or continue to pose a risk to your business.

However, the time they are suspended for must be as short as possible and kept under review. It must also be made clear to the employee that this is not disciplinary action.

Moving to the next step

You need to conduct any necessary investigation before you proceed to any disciplinary hearing.

People involved in the disciplinary process

Different people should conduct the investigation and any subsequent disciplinary or appeal hearings. However, depending on the size of your business, this may not always be possible and our Employment Law Advisers can help you decide who is best placed to take charge of each stage.

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