Before an employee is called to a disciplinary hearing, the employer must carry out a reasonable and fair investigation. This applies to even the most serious cases, such as when an employee is accused of gross misconduct. But what is a “fair and reasonable” investigation?
In this article we look at the purpose of investigations, who should carry them out, the evidence the employer should consider, the rights of the employee and what could make an investigation unfair.
The investigation should focus on establishing the facts about the allegation against the employee. The main purpose of an investigation meeting is to determine if there’s a case to answer, not to try to prove the employee is guilty. It should therefore be carried out promptly and should not, of itself, lead to a disciplinary sanction.
This is usually set out in the agreed performance and disciplinary procedures. In any event, the investigator should be trained and impartial. They should not be a key witness in the case, nor should they conduct any subsequent disciplinary hearing. Depending on the allegation, someone with specialist knowledge may be needed, but this should be agreed to ensure that the process is fair and reasonable.
Employers should keep an open mind when carrying out an investigation: their job is to look for evidence that supports the employee’s case as well as the case against them. This is particularly important where the employee has been suspended and has no access to witnesses. How rigorous the investigation should be depends on the circumstances of the case taking into account the time and expense involved, and the consequences for the employee. The ACAS Guide to Discipline and Grievances at Work recommends that, the more serious the allegation, the more thorough the investigation should be. This is particularly true if an employee is at risk of losing their profession.
Witness evidence may also be sought as part of the investigation. An investigation may be unfair if key witnesses are overlooked, particularly if they are eyewitnesses. However, there’s no need to interview every available witness once the facts have been established.
If further information comes to light later, or the reliability of a witness comes into doubt, the employer should probe that evidence further, otherwise the investigation may be flawed. In one case, Sneddon v Carr Gomm Ltd, the tribunal held an employee was unfairly dismissed because the employer had failed to re-interview a primary witness when further information came to light during the investigation.
It’s a fundamental principle of fairness that the employee knows the case against them, and this is just as relevant to the investigation as to any subsequent disciplinary proceedings. The employee should be informed of the allegation, which should be set out clearly in advance of any investigation. If an employee is dismissed for an allegation that was not part of the investigation – for example, if the allegation was that the employee had underperformed, but the employer relies on a fraud allegation to dismiss them – the dismissal is likely to be unfair.
Although an employee does not have a statutory right to be accompanied to an investigation meeting, for example by a union rep or a colleague, this is often provided for under the employer’s disciplinary or performance procedure. It is therefore worth checking the employer’s policies before the meeting.
While there is no requirement for an employer to produce a report, in its guide Conducting investigations in the workplace, ACAS recommends that the findings of the investigation are recorded in writing. It’s important to stress that the investigator should restrict their conclusions to recommendations on whether formal action should be taken, such as a disciplinary hearing. It’s not the role of the investigator to suggest a possible sanction or prejudge the outcome of the disciplinary hearing.
If the employer does not carry out a reasonable investigation, any decisions they make in the disciplinary process are likely to be unfair.
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