Investigations & Dismissal

Whether this is something you have had to deal with or not, as an employer, its likely that at some point you will. Here are the facts;

When carrying out an investigation into employee misconduct, or a grievance, is key to establishing the facts. Failing to investigate could lead to successful Employment Tribunal claims for unfair or constructive dismissal.

The person appointed should have had no involvement in the matter under investigation. Should a disciplinary hearing need to be convened following an investigation, the ACAS Code of Practice on Disciplinary and Grievance Procedures recommends that different people should carry out the investigation and disciplinary hearing. Where this is not possible, due to the size of the organisation, employers are advised to seek expert employment law advice.

It is important to carry out the investigation as soon as possible after the incident, allegation or grievance comes to light. This is to ensure that recollections do not fade, or that evidence is not lost. There must be no unreasonable delay in the investigation, especially where the offence might potentially be one of gross misconduct. Suspension will need to be considered for gross misconduct allegations, or if there is a potential risk to the organisation, employee or the investigation. HR advice should be taken to confirm whether suspension is required.

The investigating manager must collate copies of all documents which could be relevant to the case and decide who will need to be interviewed as part of the investigation. It is important that the investigating manager has a full understanding of the incident or allegations made, together with any documentary evidence to support the allegations, prior to speaking to the employee and any witnesses.

The investigatory meeting should be planned in advance and a list of questions compiled to ask at the interview. Non-judgemental, straightforward questions must be asked to obtain the facts. Open questions should be used to ensure as much detail as possible is collated, for example “Tell me about…”, “What was your involvement….?” Leading questions must be avoided!

It is imperative that an employee is told about any allegations made against them. If new allegations come to light during an investigation, then the employee must be told about these also.

There is no statutory right for employees to be accompanied at an investigatory meeting. However, the Employee Handbook and Disciplinary Policy and Procedure will confirm whether this right is provided to employees within your own particular organisation. Failure to follow your company policy and procedure could lead to a breach of contract claim by the employee.

As meetings are held purely for fact-finding purposes, no formal action will be taken during the meetings, and they can therefore be arranged verbally or in writing. The right to be accompanied at the meeting must be notified if this right is provided within your organisation.

Any meeting should take place in private and interruptions should be avoided. It should be made clear to the employee that the meeting is not a formal hearing but an opportunity for him/her to respond to any allegation, or issue, and to assist in establishing the facts.

The investigating manager will need to explain that notes will be taken at the meeting and these will provide a statement of events. The employee will be asked to review and sign the statement. Any documents that require an explanation should be discussed at the meeting. In addition, it will be important to explain that the information provided may be used in any subsequent disciplinary hearing.

Witnesses should be interviewed individually, not in a group. Employees should be aware that they may be called as a witness, and questioned about their statement, in any subsequent disciplinary hearing. The investigating manager must not criticise, or make judgments, about the honesty of any witness and should remain impartial at all times.

Once the investigation has been completed, a decision must be taken about the next step. The investigating manager is not required to state whether he/she believes the employee is guilty of the alleged offence, and no comment should be offered as to any sanction that might follow.

If an employee is invited to a disciplinary hearing as a result of an investigation, then copies of all relevant documents must be provided to the employee. These must be provided in advance of the hearing date to allow the employee sufficient time to prepare their response. It is important to adhere to the steps specified in the organisation’s Disciplinary Procedure at all stages of the process.

All documents collected during the course of an investigation should be retained, together with a written note of the outcome of the investigation. Records should be treated as confidential and kept no longer than necessary in accordance with the Data Protection Act 1998.

If a disciplinary hearing is convened, the record of the disciplinary hearing will be retained in accordance with the organisation’s Disciplinary Procedure. All in all, any investigation should be such that it provides evidence to support the employer’s reasonable belief that the employee is guilty of allegations.

Working example

Guidance has been given in Salford Royal NHS Foundation Trust v Roldan. It is important to follow this guidance as failure to do so may result in an unfair dismissal claim being lost way before the dismissal even takes place.

R was a Filipino nurse who S believed had mistreated a patient based upon the evidence of D. R had four years service while D had four months service. Part of D’s evidence contradicted with the knowledge of the investigating officer.

The investigating officer was aware that the room in which the alleged mistreatment had taken place could not be seen into. However, D’s evidence clearly said R had been looking at the window to check she was not being watched.

This contradiction could have gone to the credibility of D’s evidence yet was not investigated further. Despite there being no corroborative evidence R was dismissed for gross misconduct.
As R was a foreign national the consequences included losing her job as well as her work permit and right to remain in the United Kingdom. She was also subjected to a police investigation, which was ultimately dropped.

R submitted a claim to the Employment Tribunal and was successful in her claim for unfair dismissal with the Tribunal highlighting the inconsistency in D’s evidence. The Tribunal also found that part of the decision had been based upon a further unreported allegation by D against R.

Although S successfully appealed at EAT, the Court of Appeal overturned the Employment Appeal Tribunal’s decision and restored the original decision. In doing so authority was created for the following propositions;

• The more serious the consequences for the employee the more detailed and careful the investigation should be.
• When an employer is faced with conflicting evidence, for which there is no other corroborating evidence, there is no obligation to believe one employee over and above the other.

Summary

• When investigating a potential gross misconduct situation make sure it is as thorough as possible. Remember that the evidence must support a reasonable belief that the employee is guilty of the conduct in question. If the evidence does not do this, then you should consider whether the disciplinary process can be taken any further.
• Take into account that the more serious the consequences are for the employee – such as being unable to work in their chosen field - and investigate the allegations as is reasonable in the circumstances.
• If the investigation produces conflicting evidence, there is no obligation to prefer on person’s evidence over another and it is reasonable to give the benefit of the doubt to the alleged wrongdoer.
• And should you decide to dismiss always ask yourself, “do I genuinely believe this person is guilty and can I explain why I believe that at an Employment Tribunal?”