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Where Disciplinary Investigations Go Wrong

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Identifies some common reasons why disciplinary investigations fail which ultimately maylead to a finding of an unfair dismissal at an Employment Tribunal.

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Where Disciplinary Investigations Go Wrong

  1. 1. Where Disciplinary Investigations go wrong Leslie Cuthbert INDEPENDENT INVESTIGATIVE INTERVIEWING LIMITED [email_address]
  2. 2. About III Limited Independent Investigative Interviewing Ltd (III Ltd) is a company founded by two solicitors with a combined experience of over 30 years in investigations. As a company we do not provide legal advice but have a background in providing analytical and advisory assistance to both individuals and companies. Our staff have experience of 1000s of hours of interviews in relation to a variety of allegations from the most minor infractions of company policies to the most serious of criminal offences. As independent consultants we have also trained a variety of organisations both within the United Kingdom and abroad in how to undertake "best practice" in conducting interviews including: International Accounting and Consultancy Firms; Specialist Criminal Investigators; Public Bodies including: NHS Trusts, Local Authorities and Fire and Rescue Services; Regulators and Private Companies.
  3. 3. Outline <ul><li>What will be discussed are some common reasons why disciplinary investigations fail which ultimately may end up in a finding of an unfair dismissal at an Employment Tribunal . There are obviously a myriad of reasons but this presentation summarises a few of the most basic as follows: </li></ul><ul><ul><li>A ‘blinkered’ approach to investigations </li></ul></ul><ul><ul><li>Miscommunication and misunderstanding between individuals </li></ul></ul><ul><ul><li>Mixing facts with inferences </li></ul></ul><ul><ul><li>Not understanding what makes a good witness </li></ul></ul>
  4. 4. A ‘Blinkered’ approach to investigations Too many investigations work on the principle of coming up with a hypothesis/a theory of what has happened and then seeking to prove that theory. Instead investigators should seek to prove two competing hypotheses at the same time, what I shall describe as – Hypothesis 1 and negative Hypothesis 1. For example – “ Hypothesis 1” is that Fred took office supplies home with him without permission; “ Negative Hypothesis 1” is that Fred did not take office supplies home with him without permission. As facts are gathered they should be assessed against both hypotheses not just one.
  5. 5. Why adopt this approach? <ul><li>There are a number of good reasons why investigators should adopt this approach: </li></ul><ul><li>It stops investigators from falling into the trap of being tasked to investigate a matter and assuming that it is, “just another one of those” and subconsciously ‘cutting corners’ as a result; </li></ul><ul><li>It helps to maintain the investigator’s impartiality; </li></ul><ul><li>It means that the investigator weighs up the evidence fairly rather than closing their mind to elements that ‘don’t fit’ with their theory – as facts are gathered and examined against each of these hypotheses it is much easier to determine which of the two competing hypotheses is the more likely of the two. This provides material for the decision maker’s reasoning as to why they may form a genuine belief that the action which is the subject of the disciplinary proceedings occurred. </li></ul>
  6. 6. Filter An additional point to make here is that investigators should not to seek to decide upon the precise nature of the disciplinary investigation too quickly. Instead investigators should identify all possible or potential breaches of policies/procedures that the facts disclose rather than the most familiar . To give you a famous example r emember that Al Capone was prosecuted eventually for tax evasion not racketeering!!! Only after they have gathered sufficient facts should the investigator filter the facts that have been established to determine all possible causes of disciplinary action.
  7. 7. Miscommunication and misunderstanding between individuals When we seek to communicate with another party there are 4 distinct stages which progress in a circular fashion. This is called the “Communication Cycle” and the four stages are: ENCODE  SEND   DECODE  RECEIVE
  8. 8. Why misunderstandings occur? <ul><li>How you encode and how you decode depends upon your personal ‘frame of reference’. </li></ul><ul><li>Everyone comes with their own ‘frame of reference’ the sum of their knowledge and experiences which will influence how they will interpret what is being conveyed to them. </li></ul><ul><li>Therefore as we all come from a different perspective we can almost literally be speaking different languages. </li></ul><ul><li>Don’t believe it? Well, have you ever heard of “Chinese whispers”? The reason the game “Chinese Whispers” works is because people generally don’t understand the Communication Cycle. Instead of simply repeating the words which they have been told people try to convey the meaning behind phrases but we may all decode and re- encode phrases in a different way depending upon our frame of reference hence why “Chinese Whispers” occurs. </li></ul>
  9. 9. Poor example of the Communication Cycle <ul><li>Interviewer – “Are you happy in your job?” </li></ul><ul><li>Interviewee – “Well I’ve been here 10 years.” </li></ul><ul><li>The Interviewer moves on to another topic. </li></ul><ul><li>There are a number of reasons why this is a poor example of the Communication Cycle in interviewing: </li></ul><ul><li>1) The encoding of the question was poor in that it was an ambiguous question – what does the word ‘happy’ mean? </li></ul><ul><li>2) If we presume the sending and receiving were without mishap then there may well have been a problem in decoding the question given that the encoded answer doesn’t actually answer the question that has been asked. </li></ul><ul><li>3) The questioner has moved on when they have not received a clear answer to their question. They have failed to understand/properly decode the response. </li></ul>
  10. 10. Facts v Inferences <ul><li>A fundamental distinction but one many investigators get badly wrong. This is best illustrated by means of an example: </li></ul><ul><li>Consider the following paragraph: </li></ul><ul><li>Smith, a psychiatrist with the clinic, was scheduled for a meeting in Khan’s office to discuss an incident of aggression at 09:00 hours. On the way to the office Smith slipped on a freshly waxed floor and, as a result, received a badly bruised leg. By the time Khan was notified of the accident, Smith was on the way to hospital for x-rays. Khan called the hospital to enquire, but no one there seemed to know anything about Smith. It is possible that Khan called the wrong hospital. </li></ul>
  11. 11. Having read the preceding paragraph, classify each of the following statements as a fact or inference by ticking the correct box alongside each statement. Khan called the wrong hospital 7 No one at the hospital that Khan called knew anything about Smith 6 Smith was taken to hospital for x-rays 5 The accident occurred on the Clinic’s premises 4 Smith was scheduled for a 9 o’clock meeting 3 Smith was supposed to meet with Khan 2 Mr Smith is a psychiatrist 1 Inference Fact
  12. 12. Answers √ Khan called the wrong hospital 7 √ No one at the hospital that Khan called knew anything about Smith 6 √ Smith was taken to hospital for x-rays 5 √ The accident occurred on the Trust’s premises 4 √ Smith was scheduled for a 9 o’clock meeting 3 √ Smith was supposed to meet with Khan 2 √ Mr Smith is a psychiatrist 1 Inference Fact
  13. 13. Surprised? <ul><li>Did you start off with the assumption that there would be a mix of facts and inferences? This is exactly the sort of assumption that many people make in relation to a multiple choice test when they believe that not all the answers will be answer “C”. In this instance that assumption may well have influenced your decision making. </li></ul><ul><li>Let us examine each of the statements in turn so that you can understand why they are all inferences. </li></ul><ul><li>1) Mr Smith is a psychiatrist – if you stated this was a fact it was probably because you focused on the word psychiatrist and when you read the paragraph you saw the words “Smith, a psychiatrist”. What you have not done is to have considered the entirety of the statement in the table. The statement states that Smith is a ‘Mr’, a male. Look again at the paragraph. Nowhere within the paragraph is there an indication of Smith’s gender. Yes there is a 50% chance that Smith is male but until we have further information the statement “Mr Smith is a psychiatrist” remains an inference. </li></ul><ul><li>2) Smith was supposed to meet with Khan – check the text of the paragraph. Although Smith was having a meeting in Khan’s office it does not necessarily mean that it was with Khan. Yes Khan was notified of Smith’s accident but it may be that Khan is Smith’s line manager. It is not a fact that Khan is whom Smith was supposed to meet. </li></ul>
  14. 14. <ul><li>3) Smith was scheduled for a 9 o’clock meeting – although it may be that the meeting was scheduled for 9 o’clock the way the text reads it could also mean that the incident of aggression occurred at 9 o’clock. As it is unclear the statement must be an inference. </li></ul><ul><li>4) The accident occurred on the Clinic’s premises – this should have been an easy one to spot as there is nothing within the paragraph to indicate where the accident occurred. </li></ul><ul><li>5) Smith was taken to hospital for x-rays – there were 2 inferences contained within this statement. Firstly the assertion that Smith “was taken” when the paragraph does not indicate how he was travelling to the hospital and indeed it might be he was doing so alone, under his own power. Secondly there is nothing to say that Smith arrived at the hospital. </li></ul><ul><li>6) No one at the hospital that Khan called knew anything about Smith – here alarm bells should have rung and you should swiftly have ticked the inference box. Why? Look at the statement. It is incredibly wide with two parts in particular causing enormous concern – “No one” and “anything”. They indicate that not a single person in the entire hospital knew the slightest piece of information about Smith. That statement could never be a ‘fact’ unless Khan spoke in detail to every single person in the hospital. </li></ul><ul><li>7) Khan called the wrong hospital – again this was a straightforward inference. There is nothing in the paragraph to indicate whether it was the correct hospital or not. </li></ul>
  15. 15. The qualities of a good witness <ul><li>There are 3 key characteristics that make up a good witness which investigators generally do not appear to be aware of: </li></ul><ul><li>Honesty </li></ul><ul><li>Accuracy </li></ul><ul><li>Impartiality </li></ul>
  16. 16. Why are these the key traits? <ul><li>A Witness’s credibility will be attacked either on the basis that they are: </li></ul><ul><li>Lying i.e. dishonest </li></ul><ul><li>Mistaken i.e. inaccurate or sloppy </li></ul><ul><li>Prejudiced or biased </li></ul><ul><li>(Or it may be a combination of these.) </li></ul><ul><ul><li>This principle applies to the investigators just as much as to the witnesses asked to give evidence in disciplinary proceedings. </li></ul></ul>
  17. 17. How may Independent Investigative Interviewing Limited help your business? A highly specialised team of trained interviewers we are able to be 'parachuted' in to your business, whether public or private sector, and conduct complaints, disciplinary, grievance or health and safety interviews where you may have neither the manpower, time or experience to undertake them. Alternatively we are able to provide training to your staff to improve their investigatory skills and help prevent the problems outlined in this presentation from occuring . To discuss how III Limited may assist your organisation please visit our website: www.iiiltd.co.uk and complete an online questionnaire or alternatively contact us by email at: [email_address]

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