On a rare free Sunday afternoon last weekend I found myself flicking over to ITV3 and the plethora of crime show repeats. All the greats were there: Marple, Poirot, Inspector Morse and my personal favourite, Columbo (you just can't beat Peter Falk and his basset hound!) It reminded me of a bygone age of policing before allegations of corruption and botched investigations tainted the view. It also reminded me of a question which is often asked of us: how far does an employer need to go to uncover the truth in a disciplinary investigation? Below, I set out some tips for dealing with such issues.
1) The starting point is that the evidential burden in an employment context is not as high as that for a criminal prosecution. You should always remember that the legal test is that an employer must hold such investigation as is "reasonable in all the circumstances", judged objectively by reference to the "band of reasonable responses".
2) Some employer's disciplinary procedures set out detailed guidelines for conducting investigations. If so, these should be followed. In addition, the ACAS Code of Practice on discipline and grievances also provides guidance on dealing with investigations (and remember a failure to follow the ACAS Code could result in an uplift to compensation awarded by a Tribunal by 25%).
3) Issues should be dealt with promptly and witnesses interviewed as soon as possible, before memories fade.
4) An investigation should be conducted impartially by an individual who is not involved in the allegations. A different individual should then be responsible for conducting the disciplinary hearing.
5) The primary purpose of an investigation is to establish the facts and determine whether there is sufficient evidence to warrant convening a formal disciplinary hearing. An investigation report might contain the investigator's opinion, but should not decide the case – that needs to be left to the disciplinary hearing.
6) An investigation often uncovers conflicting accounts. It is important to ensure that the evidence which both supports and refutes the allegations is presented in a balanced and neutral way.
7) The scope of an investigation will depend on the allegation(s). In practice, it's likely that the more serious the allegation, the more detailed the investigation should be.
8) Should an employee be suspended? Although it is sometimes tempting to suspend an employee as soon as they are being investigated, employers need to think carefully about whether the action is really proportionate. Suspension in some circumstances could be a breach of trust and confidence and it's important to avoid knee-jerk reactions. Think about whether alternative working patterns could remove the need for suspension. Also reiterate to the employee that suspension is not a disciplinary action but necessary for the investigation to be conducted unhindered. It goes without saying that suspended employees should continue to receive their full pay.
9) If an employee has committed a crime that is investigated by the police, the employer should always ensure that it follows police advice if there is any question of police evidence being affected. However, in the usual course of events, the employer's own investigation should not be hampered by a police investigation. The employer, as always, should act fairly and reasonably throughout.
It should also be borne in mind that the original investigation is not the be all and end all. New evidence can come to light at any stage of a disciplinary process be it during a hearing or a subsequent appeal. In such circumstances it is important to ensure that the evidence is given due consideration, to avoid arguments over fairness.