Invest and conduct an investigation properly or face liability

Investigations are the backbone of your disciplinary and grievance procedure and your defence in an unfair or constructive unfair dismissal claim. An unfair dismissal or constructive unfair dismissal claim can be lost purely on the basis that you have failed to follow a fair process by not conducting a fair investigation. An investigation must take place prior to any disciplinary action to ensure that you do not fall foul of the ACAS code or the principles of fairness established by case law.

Investigations are an integral part of your disciplinary and grievance procedure. They are an essential part of the process and required to make a determination as to whether to proceed to a disciplinary hearing and/or whether to uphold a grievance. They should be conducted:

  • When managing conflict between individuals;
  • When an employee has raised a grievance; or
  • During disciplinary proceedings, for example, for misconduct.

Investigations are undertaken to:

  • Gather;
  • Establish; and
  • Assess the facts surrounding a grievance or disciplinary issue.

Whilst they are not part of the formal disciplinary hearing, they are an essential part of the process and are required to determine whether to proceed to a disciplinary hearing and/or whether to uphold a grievance. An investigation could establish that there is a perfectly plausible explanation for the conduct and determine that disciplinary action is not required. This is why it is imperative that, even in cases of obvious guilt that you should always investigate rather than launch straight into a disciplinary hearing or go straight to dismissal.

Procedural deficiencies in an investigation can lead to an unfair dismissal claim and therefore it is essential that investigations are carried out fairly and objectively.

The nature and extent of your investigation will depend on the circumstances and the seriousness of the matter. The Employment Tribunal will expect you to show that you have conducted a careful, fair and objective investigation where complaints are made by or about employees.

Please note that there is a distinction between an investigation and any subsequent disciplinary proceedings. For example, if an employee admits guilt during an investigative interview this will not remove the need for a further disciplinary meeting. A disciplinary meeting should be held so that the employee can have an opportunity to state his/her case and possibly bring evidence to explain any mitigating factors. Furthermore, whilst an employee has admitted guilt this does not mean that the investigation should stop. You may still need to investigate further particularly if they admit to the act but state that they were provoked.

The key principles to keep in mind

  • Be thorough and follow all leads;
  • Be open-minded and act without pre-judging – or appearing to have pre-judged – the issues;
  • Look for evidence for as well as against the employee’s case;
  • Keep the fact of the investigation as confidential as you can; and
  • Carry out the investigation promptly.Blog divider RAC

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