Blake Lapthorn's Thames Valley HR forum - 21 may 2013
Conducting an Effective InvestigationThames Valley HR Forum21 May 2013
BackgroundEmployers need to bear in mind:The ACAS Code of Practice on Disciplinary andGrievance ProceduresThe need to identify a potentially fair reason fordismissalThe need to act reasonably when conducting adisciplinary investigation
FairnessIn a conduct dismissal case the employer must showthat, at the time of dismissal:It believed the employee to be guilty of misconductIt had reasonable grounds for believing the employeewas guilty of that misconduct;At the time it held that belief, it had carried out asmuch investigation as was reasonable.(British Home Stores Ltd v Burchell)
Preliminary IssuesNo right to be accompaniedConfidentialityWho conducts the investigation?Do you suspend?
Obtaining the EvidenceInvestigation should be conducted “withoutunreasonable delay”Witness evidence and physical evidenceAre there health issues to investigate?
How thorough do you have to be?You must conduct such investigation as is“reasonable in all the circumstances”How strong is the case against the employee?How serious are the allegations?The need to be even handed
What if there is more than one suspect?You may be able to fairly dismiss all members of the group ofsuspected offenders provided:An act has been committed which, if committed by an individual,would justify dismissalThe employer has conducted a reasonable investigationThe employer reasonable believed that one or more personscould have committed the actThe employer acted reasonably in identifying the group ofemployees who could have committed the act and eachindividual was capable of doing soAs between the members of the group, the employer could notreasonably identify the individual perpetrator
Reluctant witness and requests for anonymityBalance between witnesses request for anonymity andemployee’s need to know the case against him. EAT guidance:The information given by the informant should be put in writing.When taking witness statements consider the following:– the date, time and place of observation and incidents;– the witness’s ability to observe the incident clearly and withaccuracy;– relevant circumstantial evidence; and– whether the witness has any reason to fabricate evidence.
Reluctant witness and requests for anonymity(cont)Corroboration of witness evidence is desirable.It may be appropriate to enquire into the characterand background of the witness.If the witness is genuinely in fear of their identitybeing disclosed, the employer will need to decidewhether or not to continue with the disciplinaryprocess.If a decision is taken to continue, those conductingthe hearing should interview the witness and satisfythemselves as to the weight to be given to thewitness’ evidence.
Reluctant witness and requests for anonymity(cont)Witness statements should be made available to theemployee accused of misconduct, if necessary, withappropriate omissions so as to avoid identification ofthe witness.If the accused raises issues which need to be put tothe witness, an adjournment may be desirable so thatthe chairman can make those enquiries.Full and careful notes should be taken at the hearing.If evidence is to be taken from an investigating officerat the hearing, it should be prepared in written form.
Police involvement or criminal allegationsDoes it have a bearing on the employment?Employer should carry out it’s own investigation andnot delayObligation to carry out a reasonable investigationbefore dismissal remains
Setting out the case and disclosing the evidenceNatural justice requires that the employee knows thecase against himEmployee must appreciate the severity of theallegations and the possible consequencesAllegations should be precisely framed – do notaccuse an employee of one thing and dismiss foranotherProvide the employee in advance with copies of theevidence that you intend to rely upon
What if the employee raises a grievance or is offsick?Suspend the disciplinary process or deal with thegrievance and disciplinary issue concurrently?Is illness a contributory factor to the poorperformance or misconduct?Fitness to work and fitness to attend a meeting arenot the sameWhat’s the impact of any delay?Alternatives? – telephone; neutral location; writtensubmissions?