Disciplinary investigations – a legal perspective on why it’s so important to get them right
Disciplinary investigations are a difficult, but necessary part of every workplace. When an employer decides to take this formal route to address allegations of employee misconduct, it is critical that they are undertaken in a fair and even-handed manner.
In cases of unfair dismissal, disciplinary investigations are at the heart of the legal process. In cases of unfair dismissal as a result of a conduct related dismissal, the investigation is almost always considered by the Employment Tribunal, who will want to understand whether the employer had a genuine belief that the employee did the misconduct, and had reasonable grounds for that belief.
Central part of the process
The investigation will form a central part of the process upon which the employer bases their belief when reaching the decision to dismiss. This is why getting the investigation right is so crucial and getting them wrong can have a considerable impact on individuals and organisations.
As well as being the vehicle for a fair process, investigations can also shine a light on hidden workplace issues. A good investigation will not just explore the who, what, where, when, how of an allegation, but will also give employers a good insight into why something may have occurred; Are staffing levels unsafe? Is there a poor culture of “banter”?
It is also important to remember that the purpose of a disciplinary investigation is to search for evidence that exonerates the employee as much as for evidence that implicates them.
Trust in employers
It is crucial for employees to have trust in their employer, that should a disciplinary investigation be instigated; they know that it will give them the opportunity to have their voice heard and for them to be able to put forward their side of the story.
So, what can employers do to inspire trust? There are a few steps that can go a long way, whilst also complying with overarching legal obligations. This is caveated by recognising that each case turns on its own individual circumstances, and there may be cases where some of these pointers below might not always be appropriate.
- Ensure the employee is in the best position to put forward their defence. The purpose of an investigation is to find out what happened, and most crucially from the employee concerned. Yet many employers are often scared to stray from a regimented investigation process, where the individual must submit to an interview. Whilst such interviews are often useful and can be very supportive, there are occasions where there may be a better way of obtaining information from the employee, particularly for those who may be suffering from anxiety or are neurodiverse. On such occasions Occupational Health advice can support and inform a suitable approach, or the employee themselves may be able to tell you how they would best be able to respond; for example, answering questions in writing, or questions being formulated in a certain way.
- Follow up reasonable lines of enquiry put forward by the employee. If the employee points to relevant information, the employer should either include it within the investigation, or be able to clearly explain why they have not done so. Relevant information can easily be overlooked – particularly when it’s gathered as part of the initial fact-finding exercise.
- Empower managers to have difficult conversations early on. All too often managers can be reluctant to tackle minor misbehaviour. They may let such behaviour accumulate, resulting in frustrated employees and, crucially, employers being more likely to take disciplinary action over what the employee perceives to be a minor issue, but what the employer considers “the straw that broke the camels back”. Managers should be confident that they can use their common sense and can have difficult conversations early on.
- Ensure that the concept of mitigation is properly understood and is taken into account. It is a simple concept – consider the factors in the employee’s favour. Is this a first “offence” from an employee with an otherwise flawless service record? Was the employee unwell at the time, and did this ill health contribute to the misconduct? Has the employee been poorly managed leading to them being unaware of the impact of their behaviour? Of course, sometimes, dismissal or another sanction will still be the appropriate outcome, despite the mitigation.
- Communicate with the employee. Employees undergoing investigation can often feel ostracised from the workplace, unable to confide in their peers due to confidentiality obligations. This feeling can be compounded when investigations become protracted, which can often happen for entirely reasonable, and unavoidable reasons. Ensuring that employees have a good feel for the timeframe of an investigation and are updated periodically, can help manage expectations and avoid the what-ifs. Allocating a ’wellbeing support buddy’ who the employee can confide in can also help avoid feelings of isolation.
Ultimately, dealing with an allegation of misconduct is never going to be a pleasant experience for an employee. Some instances of misconduct will invariably be serious and result in dismissal. However, taking steps to ensure the process is fair, even-handed and supportive will help to maintain trust and confidence in the organisation. It may also reduce the risk of claims being brought in the Employment Tribunal, and where those claims are brought, will assist employers to defend those claims.
Sammie Morris is a chartered legal executive specialising in employment law for legal and risk services in NHS Wales Shared Services Partnership.