Staff Investigations 11 February 2010
Introduction One of the most difficult tasks facing employers involves conducting staff investigations. The need to carry out a formal investigation will arise when following a disciplinary or grievance procedure and is key to the fairness of any subsequent decision made. The consequences of failing to investigate the issues properly and fairly may result in successful Tribunal claims being brought against the employer for Unfair or Constructive Unfair Dismissal. When carrying out an investigation, employers must firstly ensure their internal procedures are fully compliant with the ACAS Code of Practice. The code is intended to provide practical guidance upon carrying out disciplinary procedures for misconduct or poor performance and must be taken into account by Tribunals when considering whether an employer has acted reasonably during the internal procedure. Furthermore, if an employee wins an Unfair/Constructive Unfair dismissal case, the Tribunal can adjust the amount of compensation by up to 25% if either the employee or the employer has unreasonably failed to comply with the ACAS Code. Employers must also bear in mind that simply following the ACAS Code alone may not be sufficient to persuade an Employment Tribunal that any potential dismissal is fair and must do whatever is reasonable in the circumstances to minimise an Unfair Dismissal. Fairness So how does an employer act reasonably in all the circumstances? This test will come under scrutiny where an employee contests the actions of the employer during a disciplinary or grievance procedure. In particular, an Employment Tribunal will consider the principles derived from the case of British Home Stores Limited v Burchell [1978] IRLR 379, when considering the fairness of any potential dismissal. To establish fairness in a conduct dismissal case, an employer must be able to demonstrate that at the time of dismissal: It believed the employee to be guilty of misconduct; It had reasonable grounds for believing that the employee was guilty of that misconduct; and At the time it held that belief, it had carried out as much investigation as was reasonable.
In determining fairness, an Employment Tribunal will not consider whether the employee was actually guilty of the misconduct, but whether the employer believed and had reasonable grounds for believing that the employee was guilty of the misconduct at the time the decision was made. To demonstrate that it had reasonable grounds for the belief, the employer must establish that it conducted an appropriate level of investigation. A Tribunal will not substitute its own view of what a reasonable investigation would be, but ask the question regarding whether the employer s actions were within the band of reasonable responses. It will take into account the level and extent of the investigation and also whether dismissal was a fair sanction to impose in the circumstances. Is a formal investigation necessary? Employers must therefore think carefully as to whether a formal investigation and disciplinary procedure is required before instigating such. A disciplinary procedure should not simply be considered as a means of dismissing or imposing sanctions on employees or ensuring compliance with legislation. Sensible and reasonable implementation of internal procedures can be a very useful management tool and promote improved standards at work and morale. Often, however, a quiet word or informal action may be all that is required to solve a problem. Therefore, employers should consider alternatives before launching straight into an investigation and subsequent disciplinary action. The Investigation Firstly, employers must ensure they are aware of the distinction between an investigation and any subsequent disciplinary proceedings and separate meetings must be held for both. Even if an employee admits guilt during an investigatory interview, a further disciplinary meeting must still be convened in order that the employee can have an opportunity to state his/her case and possibly present evidence to explain any mitigating factors. The amount of investigation required will vary depending on the individual circumstances of the case. The employer must ensure that it has established the relevant facts of the case, and held such investigation as in reasonable in all the circumstances, judged by reference to the band of reasonable responses.
If an employee has admitted misconduct, it is usually reasonable for the employer to take this at face value without further investigation. However, it is both good practice and advisable that an investigation is still carried out to ensure a watertight disciplinary / dismissal procedure is followed. Who should conduct the investigation? An employer must consider the appropriate person to conduct the investigation. The first port of call should be the internal disciplinary procedures which may actually stipulate the person required to perform this role. In many cases, the employee s immediate line manager may be the appropriate person. Employers should also consider the persons who may be required to conduct any potential Disciplinary and Appeal Hearing. The ACAS Code of Practice recommends it should not be the person who has conducted the investigation. This can present difficulties in smaller organisations where there are limited employees able to perform each specific function. These difficulties are taken into account by an Employment Tribunal when assessing the fairness of any procedure followed, but employers should always ensure it acts fairly and impartially throughout. Plan Investigation Once an Investigating Officer has been appointed, from the outset, he/she must be clear about: The reason for the investigation; The relevant policy and procedure under which the investigation is being conducted; The precise issues to be investigated; How the investigation will be conducted; The proposed time frame; All resources available to the investigator; and All key and relevant evidence. Planning from the outset will ensure that the Investigating Officer has a clear focus upon how the investigation will be carried out.
Suspension In incidents of serious misconduct, an employer may wish to suspend the employee who is being investigated. This may be appropriate in certain circumstances such as where there is a potential threat to the business or other employees, or if it is not possible to properly investigate the allegations if the employee remains at work. However, it is a serious step and it must only be implemented having given significant care and thought as to whether it may be avoided. Employers should ensure the period of suspension is as short as possible and kept under regular review. Suspension should not be seen as any form of punishment or disciplinary action, but as a means of assisting the investigation and be ended as quickly as possible. During the period of suspension, employees should continue to receive all contractual pay and benefits in the usual way. Employers must also be mindful of the mutual duty of trust and confidence and ensure it has reasonable grounds for suspension to avoid breaching this duty. Failure to do so may result in potential Constructive Unfair Dismissal claims. Evidence Employers should ensure when carrying out an investigation that evidence is gathered in respect of both the allegations against the employee but also in respect of proving his/her innocence. The Investigating Officer should not just rely on Witness Statements. For example, physical evidence such as CCTV footage or computer records may provide crucial evidence. Care should be taken to ensure such evidence is obtained as a priority as it may be destroyed before being obtained. Witnesses should be spoken to and notes taken of their recollection of events before memories fade. There is a clear balance to be struck between an employer s need to gather this information during the investigation and the employee s right to be treated fairly and reasonably to ensure there is no breach in the implied term of mutual trust and confidence. The investigation should therefore not be used as an excuse to undertake a fishing expedition but must be even-handed and reasonable in the circumstances.
Often, further facts will come to light during the investigation. This may present the need for the employer to carry out further investigation and may involve interviewing other witnesses or revisiting certain areas of the investigation with witnesses for clarification or fresh evidence. All evidence should be recorded in writing wherever possible. Problems encountered during the investigation A common problem faced by employers occurs when a witness is reluctant to present evidence or will only do so if they are given an insurance of anonymity. In such circumstances, employers should try and establish the reasons for any such reluctance and ensure the witnesses are aware of their duty of fidelity to the employer. Employers should also investigate the motivation of any informant and investigate why there is any reason for anonymity. The most important thing for the employer to bear in mind is that it must ensure the employee is fully aware of the allegations against him. Therefore a balancing exercise needs to be carried out between the duty of care towards any informant and the requirement for the employee to be fully aware of the case they are required to meet. Steps can be taken to protect the witness s identify such as doctoring their statement if this can be done without removing any of the material facts or evidence. However, no guarantee of complete confidentially can given to witnesses as there is always a risk that if the matter becomes subject to legal proceedings, they may be required to present evidence. If a witness is genuinely in fear of their identity being disclosed to an employee accused of misconduct, the employer will need to decide whether or not to continue with the disciplinary process, taking all these matters into account. Disciplinary Action Any investigation should be no more than is necessary to ascertain the full facts. Most importantly, an employer must ensure the employee is fully aware of the case against him and provided with all relevant evidence ahead of any Disciplinary Hearing. Before any Disciplinary Hearing is convened, the employer should therefore write to the employee to confirm the outcome of the investigation and set out sufficient information about the allegations and potential consequences to enable them to fully prepare their case for a hearing. One for the biggest mistakes that employers make during this process
is when failing to send copies of all relevant evidence such as witness statements and details of any other evidence related ahead of any forthcoming disciplinary hearing. The ACAS Code of Practice is clear that this requirement must be met. An employee must also be aware of the potential consequences of the allegations. This briefing note is intended solely as an overview of the law. It was last updated on 01 October 2009. No responsibility can be accepted for the completeness or accuracy of this briefing note and professional advice should be taken in relation to any specific problems. For further information please contact Mike Butler, Chris Sing, Jameel Mann, Rachel Hatton or Gemma Mills at our Midlands offices on 0115 983 3650 or 01332 331 631.