Blake Lapthorn's Employment team held a forum on how to conduct an effective investigation on 21 May 2013 at Blake Lapthorn's Oxford office.

1. Conducting an Effective Investigation
Thames Valley HR Forum
21 May 2013

2. Background
Employers need to bear in mind:
The ACAS Code of Practice on Disciplinary and
Grievance Procedures
The need to identify a potentially fair reason for
dismissal
The need to act reasonably when conducting a
disciplinary investigation

3. Fairness
In a conduct dismissal case the employer must show
that, at the time of dismissal:
It believed the employee to be guilty of misconduct
It had reasonable grounds for believing the employee
was guilty of that misconduct;
At the time it held that belief, it had carried out as
much investigation as was reasonable.
(British Home Stores Ltd v Burchell)

4. Preliminary Issues
No right to be accompanied
Confidentiality
Who conducts the investigation?
Do you suspend?

5. Obtaining the Evidence
Investigation should be conducted “without
unreasonable delay”
Witness evidence and physical evidence
Are there health issues to investigate?

6. 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

7. What if there is more than one suspect?
You may be able to fairly dismiss all members of the group of
suspected offenders provided:
An act has been committed which, if committed by an individual,
would justify dismissal
The employer has conducted a reasonable investigation
The employer reasonable believed that one or more persons
could have committed the act
The employer acted reasonably in identifying the group of
employees who could have committed the act and each
individual was capable of doing so
As between the members of the group, the employer could not
reasonably identify the individual perpetrator

8. Reluctant witness and requests for anonymity
Balance between witnesses request for anonymity and
employee’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 with
accuracy;
– relevant circumstantial evidence; and
– whether the witness has any reason to fabricate evidence.

9. Reluctant witness and requests for anonymity
(cont)
Corroboration of witness evidence is desirable.
It may be appropriate to enquire into the character
and background of the witness.
If the witness is genuinely in fear of their identity
being disclosed, the employer will need to decide
whether or not to continue with the disciplinary
process.
If a decision is taken to continue, those conducting
the hearing should interview the witness and satisfy
themselves as to the weight to be given to the
witness’ evidence.

10. Reluctant witness and requests for anonymity
(cont)
Witness statements should be made available to the
employee accused of misconduct, if necessary, with
appropriate omissions so as to avoid identification of
the witness.
If the accused raises issues which need to be put to
the witness, an adjournment may be desirable so that
the chairman can make those enquiries.
Full and careful notes should be taken at the hearing.
If evidence is to be taken from an investigating officer
at the hearing, it should be prepared in written form.

11. Police involvement or criminal allegations
Does it have a bearing on the employment?
Employer should carry out it’s own investigation and
not delay
Obligation to carry out a reasonable investigation
before dismissal remains

12. Setting out the case and disclosing the evidence
Natural justice requires that the employee knows the
case against him
Employee must appreciate the severity of the
allegations and the possible consequences
Allegations should be precisely framed – do not
accuse an employee of one thing and dismiss for
another
Provide the employee in advance with copies of the
evidence that you intend to rely upon

13. What if the employee raises a grievance or is off
sick?
Suspend the disciplinary process or deal with the
grievance and disciplinary issue concurrently?
Is illness a contributory factor to the poor
performance or misconduct?
Fitness to work and fitness to attend a meeting are
not the same
What’s the impact of any delay?
Alternatives? – telephone; neutral location; written
submissions?

14. Case Study
Vicky Schollar
Solicitor

15. Conducting an Effective Investigation
Thames Valley HR Forum
21 May 2013