10th June 2021

Why is a disciplinary investigation so important?

Put simply, a reasonable investigation is a vital part of a fair disciplinary procedure.
In British Home Stores v Burchell, one of the most well-known and often cited employment law cases, there is a three-question test by which Tribunals can decide whether employers have acted reasonably in dismissing employees for misconduct:

  1. Did the employer genuinely believe the employee was guilty of the alleged misconduct?
  2. Did the employer have genuine grounds to suspect that the employee was guilty of misconduct?
  3. Did the employer carry out a reasonable investigation before making a final decision about the employee’s guilt?

Employment Tribunals will not look at whether an employee was in fact guilty, but will look at whether it was reasonable for the employer to decide that they were guilty, and then dismiss them. In other words, did the employer come to a reasonable decision after a reasonable investigation?

What are the basic principles?

  • Before an investigation takes place, it would be good practice to check the contract and your policies: what do they say about how you must conduct the investigation? Is there a contractual obligation to hold an investigation meeting? Do they say that certain information must be given in a certain way or format within a specific timescale? Contractual disciplinary procedures are not common, but they are not unheard of. And in that situation, a failure to follow a contractual procedure can give rise to a claim of wrongful dismissal even if the dismissal was a fair one.
  • Ideally, different people should carry out the investigation and the disciplinary hearing. Where this is practicable and the employer has made no arrangements to accommodate this, the dismissal is likely to be unfair.
  • Suspension should never be the go-to course of action. It is appropriate where there is a potential threat to the business or other employees, or where it is not possible to properly investigate the allegation if an employee remains at work. Some examples would be the destruction of evidence or the opportunity to influence witnesses. This is called having a ‘reasonable and proper cause to suspend’.

But first we want to consider alternatives to suspension. For example, temporary transfer to another role or department, home working or supervision. Suspension is a protective measure but if there are other protective measures that can be taken and they are not at least considered, it runs the risk of a breach of the implied duty of mutual trust and confidence, particularly when it is someone senior or someone who needs to be working to maintain their skills or relationships and the repercussions of suspension is more serious. We also want to satisfy ourselves that we have reasonable and proper cause because despite the fact that we might inform the employee that it isn’t a disciplinary sanction, it can create the impression of having pre-judged the disciplinary outcome. Perception is often everything in disciplinary procedures. Finally, you’ll know to keep a note of the rationale for using suspension and will be aware that suspension must be as brief as possible and kept under regular review. This is especially if the investigation goes on for some time. It is good practice to keep a note of the rationale for using suspension.

  • The amount of investigation is dictated by both the evidence and the seriousness of the allegation. It comes back to the Burchell test and an employer doing as much investigation as is reasonable in all circumstances. That is a standard judged objectively. We are commonly asked ‘how far do I go?’ and ‘must I leave no stone unturned?’ Here’s an example to illustrate how to approach this.

We have a security guard working at Edinburgh airport. He visited WH Smith in his break and was suspected by a member of staff of stealing. His boss is called and he’s stopped outside. The security guard is found in possession of a Kit Kat and a can of Coke, both of which he had not paid for. He’s suspended and the disciplinary procedure is set in motion. He says that he couldn’t be guilty because he never left the shop. The investigating officer inspects the area and is satisfied that the boundary between the shop and main area is relatively clear, and he states this in the investigation report. The shop manager and a member of staff have also been interviewed and those minutes are included with the report. At the disciplinary hearing the employee says all staff should have been interviewed and the CCTV footage should have been viewed. This evidence is not gathered and the employer concludes that it was impossible that the employee could genuinely have believed that he had not left WH Smith and he’s dismissed.

The question is: Should the investigating officer have done these things? Was the investigation nevertheless a reasonable one and the employer had a reasonable belief in the employee’s guilt? Should this evidence have been gathered and considered because it goes to the heart of the allegation of dishonest conduct, especially the CCTV?
And the answer lies in the employee’s defense to the allegation namely, he had not paid as he thought he was still within WH Smith. Once that main argument is exposed as false, there is no need for the employer to keep turning over every stone until there are no stones left unturned. The investigating officer viewed the area and if the employer is satisfied that the employee’s evidence is not credible, there is no need to carry out further investigations. CCTV footage would not have added anything to the investigation nor would interviewing more staff. There is no need to investigate alternative arguments that have not been made by the employee. For example, the employer does not need to consider whether the employee tried to pay at the self-service checkout and maybe inadvertently strayed beyond the boundary to find assistance or got distracted by a colleague or anything else for that matter. While an investigating officer has a duty to look for evidence that will disprove the allegation, that search will depend on the argument made by the employee.

Theft is serious because dismissal is on the table for consideration, meaning a Tribunal will expect an employer to be more thorough with the investigation but equally, the evidence is important. As the EAT once said, ‘At one extreme there will be cases where the employee is virtually caught in the act and at the other there will be situations where the issue is one of pure inference. As the scale moves towards the latter end, so the amount of inquiry and investigation which may be required, including questioning of the employee, is likely to increase’. But equally, there is no need to keep investigating just because the employee says so if the evidence – or the employee’s response to the allegations – does not justify it. And that is why, you might want to consider conducting as much investigation as you can before holding an investigatory meeting with the employee in question.  That way, you give yourself the best shot of understanding their defense which will in turn inform just how much more investigation you need to do before you hand the matter over to the disciplining officer.

  • An investigation calls for neutrality and essential facts only.  An investigator should be neutral, looking for evidence which both supports the allegation and disproves it. The role of investigator is to be fair and objective so they can establish the essential facts; it is not to prove guilt of any party or make a disciplinary decision, that is for the disciplinary officer.
  • Investigatory meetings with the employee are not always necessary. The absence of a formal investigation meeting with the employee at the start of the process does make the procedure and outcome unfair, which is why it can be the last meeting you hold. But an investigatory meeting with the employee before proceeding to a formal disciplinary hearing isn’t always necessary. The question is, do you have the essential facts?
  • But when there is one, concerns need to be set out, so the employee knows what they are. Ideally, concerns should not be vague ‘headlines’. Provide enough detail so that the employee understands what the concerns relate to. The employee should not need to speculate. But don’t fear, it is possible to remedy a poorly articulated concern with the invitation to the disciplinary hearing.

For example, it’s better to say, ‘I would like to discuss with you a concern that has been raised about your conduct during your shift on Monday 7th June. The concern is you spoke to Peter in a way that is not allowed under our bullying and harassment procedure. Peter alleges that on at least 5 occasions during your shift you raised your voice and told him to work quicker and he was making too many mistakes. Specifically, he says that you told him to ‘get a move on, a snail would be quicker than you, ‘my son could do a better job than you and he’s 2’ and ‘you’re useless’. Peter says he has not been trained on the tasks that you asked him to do.’ Rather than launch into questions such as ‘tell me about your shift on Monday 7th, were there any problems, did you have any problems working with anyone that day before simply saying, Peter says that you shouted at him and complained about how he was working, what do you say to that?’ The former approach will help you get those essential facts whereas the latter approach is going to get you vague responses.

Don’t forget to ensure that any invitation to an investigatory meeting or information about the process is sent to the employee promptly. You should check their contact details in advance. Consider speaking to them and handing the letter/information to them in person to ensure prompt delivery. It is, however, not always necessary to give them advance warning especially when they are still at work. Finally, there is no statutory right to be accompanied but check your policy and always consider whether the right should be given as a reasonable adjustment.

Choosing the Investigator

  • Before choosing the investigator, consider the following:
    • Are they personally involved in the matter being investigated?
    • Would the appointment raise any conflict of interest concerns?
    • Are they likely to be influenced by people involved in the matter?
    • Might they be involved in any subsequent decision making on the matter?
    • Do they have a good knowledge of the organisation and how it operates?
    • What is their availability during the investigation’s provisional timeframe?
    • Are they trained and/or experienced in how to conduct investigations?
    • How confident are they at communicating in writing and/or orally?
    • What training or support may they require?

The importance of choosing the right investigator was highlighted in the case of Cadent Gas Ltd v Singhwhere an employer was held to have unfairly dismissed an employee on the basis of his union activities, even though the decision maker was not aware of these. The investigating officer was held to have been motivated by resentment over the employee’s union involvement, such that they presented an imbalanced investigation that resulted in a charge of gross misconduct being considered.

  • Consider using an external investigator if the organisation is small, the issues are complex and/or concern senior members of staff.
  • Remember that if you have appointed a lawyer as the investigator, legal privilege is unlikely to apply as they are not advising on the law but carrying out an investigation.
  • The scope of the investigation is to gather the essential facts, not to prove guilt. However, the investigator’s role can begin or end there, or they can be tasked with framing the allegations, or making recommendations. This should be agreed at the outset. An investigator should also try to satisfy themselves that there is not a ‘hidden’ reason driving the investigation. Just as potential motives of the witnesses should at least be considered, so should the potential motives of the person instructing the investigation, which is quite often the disciplining officer. External advisers can have those difficult conversations on your behalf.
  • Remind the investigator to keep their investigation notes as these should be provided to the individual if the matter proceeds to a formal disciplinary hearing. If you are using a note taker, agree with them in advance what their role is and what style of notes you want them to take.

Witnesses
Witnesses must be interviewed and although it is not necessary to interview all of them once a fact has been established, relying on a second-hand version of what happened rather than talking to the one eyewitness can render a dismissal unfair. As far as interviewing them is concerned, remember ABC:

  • Witnesses may ask if they can be anonymised, but only on rare occasions should this be allowed. The accused has a right to know the allegations and the evidence against them so they can defend themselves. If witnesses are kept anonymous it can be difficult to achieve this. There may be situations where you can get away with that during the investigation, especially if it’s not clear whether it will proceed to a hearing, but any witness statement should be prepared on the basis that it will be seen in advance of any disciplinary hearing.
  • Be brief. Only share what information you have to in order to investigate the concerns and don’t attach labels. You want their words, their account, their views not a regurgitation of what you’ve told them. Humans are, at heart, people pleasers and that’s particularly true in the employer and employee relationship when there’s fear, rightly or wrongly, that if they don’t say what they think their employer wants them to say, it could be held against them. For example, I wouldn’t suggest you tell a witness the following: Molly Ann has accused Polly Sue of shouting at her and calling her a f*ing b just before her shift finished last night and she says you, Frank and Tom saw and heard everything. She says that she’s been bullied for a long time by her. Instead, you should say something along the lines of: ‘Molly Ann has said that there was an incident during her shift last night between her and Polly Sue. Can you tell me anything about this?’ You can then ask open questions to further probe what she has to say and the basis for it.
  • Confidentiality. Perhaps obvious, but you must ensure that witnesses understand the importance of confidentiality and the potential consequences for them if they don’t respect this.

Delay Tactics
The nature of the ill health and whether reasonable adjustments may be needed should also be considered. Failure to attend an investigation hearing without good reason may, in itself, be misconduct if the employee simply refuses to obey a lawful instruction.

  • If a grievance is lodged, consider the subject matter of the grievance. If the grievance relates to something else (e.g. a general complaint about their manager who is not involved in the investigation), run them separately and concurrently. If the grievance directly relates to the investigation, consider whether, if upheld, it might impact on the investigation. For example, it is the manager complained about who is conducting an investigation or is the main witness. If so, deal with the investigation first.

  • How often have you had a disciplinary when the employee says something completely new, makes a new argument or produces a new document in defense of the allegations? It’s very similar to the case of the light-fingered security guard. Will it add anything, is it credible? If the answer is yes, or potentially yes, you should investigate. If not, you are not obliged to but you may feel safer doing so. If in the course of investigating you find new evidence against the employee, something they’ve not seen or heard before and so have had no chance to respond to, you should give them a full and fair opportunity to engage with any new material unless you’re satisfied that their defense adequately covers this point or they can’t add anything more.  For example, the security guard says that he forgot to pay because of the effects of his new over the counter hay fever medication. The employer speaks to a pharmacist and asks if this particular medication could do that and they confirm no. That’s new evidence from the pharmacy but going back to the security guard is not going to progress matters.

Multiple allegations
Ensure that the investigation is sufficient to allow individual consideration of each of those allegations. If it is not, further investigation will be required. Factual conclusions should be reached on each allegation and, in each case, a finding should be reached as to whether it is proven and why.

Informing the complainer of the disciplinary investigation
The first point to make is this: we are dealing with two separate investigations. The first is a grievance investigation and the second is a disciplinary investigation. The Acas Code of Practice states that an employee who has lodged a grievance must be informed of the action that the employer has decided to take to resolve the matter. I would say, that whatever action an employer decides to take under its disciplinary procedure is not action designed to resolve the matter between the complainer and the accused. It is action designed to resolve a matter between the accused and the employer. So yes, the complainer must be informed of the grievance outcome and if it’s upheld, what non-disciplinary action might be proposed. This could be in the form of mediation or a move to another department.

Whatsapp Messages
There is a balance to be struck between the employer’s need to gather information for the investigation and the employee’s right to be treated fairly and reasonably so that there is no breach of the implied term of mutual trust and confidence. An employer should be careful therefore not to use the investigation as an excuse to undertake a “fishing expedition” and should therefore avoid reading material that is obviously personal such as private e-mails and diary entries. Reading personal e-mails may also raise issues under data protection legislation.

Similar considerations would apply when dealing with personal text or Whatsapp messages. Generally, obtaining these messages from a personal mobile without consent during a disciplinary investigation would be unacceptable on the part of the employer. However, in this situation it appears the employer has nonetheless become aware of the messages. Provided the employer has not acted unlawfully or wrongly in obtaining any relevant evidence, there is no reason why it cannot use it e.g. if another employee has seen the messages or been party to the messages and willingly discloses this information to the employer. The employer may then use this as evidence in disciplinary proceedings.

If you require any advice about conducting an investigation, please contact Blackadders’ Employment Team working in Perth, Dundee, Aberdeen, Edinburgh and Glasgow.

Donna Reynolds, Partner
Employment Law
Blackadders LLP
@EmpLawyerDonna

www.blackadders.co.uk

 

 

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