Carmel Sunley considers the key principles of how to conduct a workplace investigation.
From time to time managers will have to deal with misconduct or poor performance by an employee in the workplace. This article looks at how to manage a workplace investigation and avoid costly legal claims.
The first point to make is that when undertaking a workplace investigation, a fair procedure should be followed, or any resulting dismissal will almost inevitably be considered unfair by an employment tribunal, assuming that the individual employee has the requisite two years qualifying service to bring a claim.
The investigation will, in most cases, form a key part of the process as it will help an employer to determine if there is a case for the employee to answer and whether formal disciplinary action is needed following the investigation.
Parallel Criminal and Regulatory Investigations
Sometimes there may also be a parallel police investigation into the matters the subject of the workplace investigation.
Workplace investigations can of course have long-term career consequences for the employee under investigation, particularly where the employee works in a regulated environment such as the financial sector where regulatory references may be a prerequisite of future employment.
In a case with a criminal element and where the employee is regulated, it is possible that the employee will be under investigation by three different entities, the police, the employer and the regulator.
Will the Workplace Investigation need to be postponed?
Where a parallel police or regulatory investigation is underway an employer does not always have to wait until police investigations conclude before conducting its own disciplinary investigations unless the internal proceedings could rise to “a real risk of a miscarriage of justice in criminal proceedings”. The courts have not defined what the possible relevant factors are when determining whether there is “a risk of a miscarriage of justice” but an example cited by the Court of Appeal was if a civil matter was likely to attract such publicity as might sensibly be expected to reach and influence potential jurors in any criminal trial. Other relevant factors that a court is likely to consider are the nature of the allegations being investigated by the police; the duration of the postponement of the employer’s investigation and disciplinary process; whether the fairness of the investigative process would be jeopardised by proceeding rather than postponing; the resources available to the employer; and of course the employer’s reasons for claiming that the internal process should proceed before the conclusion of the criminal proceedings.
Planning the Investigation
If informal action has not resolved the workplace issue or if the issue is too serious for informal resolution, an employer will need to start a formal process. From the outset, the employer should understand the requirements and the different stages of the process without pre-judging the potential outcome. In relation to the investigation stage this will involve, among other things:
- Checking the requirements of the employer’s disciplinary procedure regarding the conduct of investigations;
- Ensuring that the allegations are properly framed and the employee understands exactly the allegations (s)he is facing;
- Determining the scope of the investigation to see how much investigation is required.
- Choosing an appropriate investigator, keeping in mind the general requirement to have different individuals at each stage (that is, the investigation, disciplinary hearing and appeal hearing) in ascending seniority.
- As far as possible, attempting to complete the investigation within any timescales set out in the employer’s disciplinary procedure. The ACAS Code requires employers to avoid unreasonable delay https://www.acas.org.uk/acas-code-of-practice-on-disciplinary-and-grievance-procedures
How much investigation is required?
The requirement for an investigation to take place before any disciplinary action is critical. In all but the rarest of cases, failure to do so will fall foul of the ACAS Code or the principles of fairness established by case law. This is true even in cases of apparently “obvious guilt” and, potentially, where the employee admits guilt.
Obvious guilt cases
It can be the case that, during an investigation, perfectly plausible explanations emerge for the suspected misconduct and the disciplinary process is discontinued without a hearing. Accordingly, the employer should always investigate rather than launch straight into a disciplinary hearing or (worse) go straight to dismissal.
An employee is witnessed taking £20 from the shop’s cash register and putting it in his pocket. On learning of this the employer could presume that the employee is guilty of theft and dismiss him immediately. However, following an investigation, the employee explains that as the shop’s cash register was short of change, two £10 notes were placed in it from his own pocket and a £20 note removed. Further investigation later that day reveals that the register is not short of £20 and therefore the employee’s explanation, which has been corroborated by a colleague, is in fact correct. Clearly in such a situation no disciplinary action for theft should arise. Training on cash register procedure may be necessary but a dismissal for theft in these circumstances would lead to an unfair dismissal finding by an employment tribunal.
Cases where employee admits guilt
An admission of guilt is likely to shape the investigation that needs to be followed but it may not remove the need for further investigation. For example, an investigation might reveal mitigating circumstances that lessen the level of culpability and therefore affect the disciplinary sanction.
An investigation should follow if:
- There is any doubt as to the employee’s motives or the truthfulness of the confession (or their confession implicates others).
- The employee concerned may be particularly vulnerable (for example, by reason of disability).
- There are any extenuating circumstances.
- Cases where guilt is not obvious
Extent of workplace investigation to be undertaken
As noted above nearly every case will require an investigation and the amount of investigation required will vary enormously depending on the individual circumstances of each case.
The level of investigation will vary based on a number of factors, including the nature and gravity of the case, the state of the evidence and the potential consequences of an adverse finding to the employee.
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”. The more serious the allegation therefore the more thorough the level of investigation required.
Further, an employer will need to investigate sufficiently to ensure that the substance of the allegations is clear, in order that they can be put to the employee in sufficient detail to enable the employee to be able to properly defend him or herself.
Consequently, if an employee’s professional reputation or ability to work in a chosen career is at stake, it is even more important that the investigation is fair and even-handed.
Conducting an investigation remotely
In early May 2020, ACAS published “Disciplinary and grievance procedures during the coronavirus pandemic”, which confirmed that existing employment law and the ACAS Code continued to apply during the pandemic.
However as remote or home-working working continues for many employees, the guidance is still helpful to employers where remote hearings may be appropriate.
The ACAS guidance states that video meetings may be used for investigation interviews, provided that the procedure is fair and reasonable. It recommends that employers consider using remote hearings if:
- Everyone involved has access to the technology needed for video meetings, for example the necessary equipment and internet connection.
- Anyone who has any disability or other accessibility issue that might affect their ability to use video technology, consider whether any reasonable adjustments might be needed as a result.
- It will be possible to obtain evidence needed for the investigation, for example records or files that are kept in the office. Note that if the relevant evidence cannot be accessed, the fairness of the investigation will be jeopardised.
- Any witness statements or other evidence can be seen clearly by everyone during an interview and can be provided in advance where appropriate.
- It will be possible to fairly assess and question evidence given by individuals interviewed during a video meeting.
- It will be possible for an individual to be fairly accompanied during any meeting (if an employer’s disciplinary procedure provides for the right to be accompanied during an investigation meeting
Provided evidence is accessible and an employer’s IT and communication systems enable employees to join meetings remotely and participate in them effectively, it should in many cases be possible for an investigation to be completed while employees are not in the physical workplace.
Synopsis of key considerations for conducting a workplace investigation
- Refer to the employer’s disciplinary policy that provides for an investigation process and the key stages of that process.
- Check that there is a contractual right of suspension during any investigation into misconduct if suspension of the employee is being considered.
- Ensure that the investigator approaches the investigation from a neutral standpoint without bias and investigates the facts.
- Confidentiality during the process is very important and everyone involved needs to understand this.
- The parameters of the investigation should be clearly framed from the outset so ensure the correct line of investigation.
- Put in place a clear process for recording interviews of witnesses which may include having a third party take a note that the interviewee can then check for accuracy.
- Remember an investigation process can be extremely isolating and stressful for both the alleged victim and the accused. Therefore, ensure that all relevant parties are kept informed of the anticipated timings of the investigation and what to expect. Having a clear timetable and providing updates if the timetable slips can help to alleviate stress.
If you would like to discuss any of the issues in this article or would like specific advice on conducting a workplace investigation or managing a disciplinary issue in the workplace please do not hesitate to contact Carmel Sunley of Sunley Workplace Solutions.