Here are ESP Law’s senior solicitor Jessica English’s top six tips to help you navigate a disciplinary investigation.
The ACAS Code of Practice on disciplinary and grievance procedures (ACAS Code) provides guidance to employers and employees for the fair handling of disciplinary and grievance matters in the workplace.
The procedures set out in the ACAS Code are considered by the Employment Tribunal as the minimum standard of fairness when investigating disciplinary and grievance matters. Failure to follow the Code can cause up to a 25% uplift in compensation at Tribunal.
The ACAS Code can be found at here. In the meantime, these are some key points of the Code to consider:
Although the ACAS Code sets the minimum standards for dealing with disciplinary and grievance investigations, a company’s own disciplinary policy can set out more detailed requirements for investigation procedures within a specific organisation.
You should always carefully consider the provisions of your disciplinary policy from the outset of any investigation so that you can check whether it imposes additional obligations on the process you need to follow. For example, some disciplinary policies confer the right to be accompanied at an investigation meeting on employee; others may impose a different timescale for an investigation to be completed.
The requirements set out in your disciplinary policy will be considered by a Tribunal when it comes to considering whether a fair and appropriate investigation has taken place. Furthermore, if your disciplinary policy is contractual, failure to follow the policy can give rise to a breach of contract claim.
This may seem like an obvious tip, but it is an important one. In most cases, the employee's immediate line manager will be the appropriate person to investigate a matter, however, this may not always be the case. Sometimes the employer's own disciplinary procedure stipulates who should conduct an investigation. In other cases, someone with specialist knowledge may be needed as an investigation officer, for example a finance manager, if the allegations concern financial mismanagement.
When selecting an investigating officer, you will need to consider who is likely to conduct the disciplinary hearing, if one becomes necessary, and any potential appeal hearing. This is to ensure that you have different people selected to deal with each stage of the process, in line with the standards set by the ACAS Code.
Sit down and work out what witnesses you need to talk to as part of your investigation and what documents are required. The witnesses you need to talk to or documents you need to obtain may change over the course of your investigation.
Try to think logically through a matter and decide on a starting point for the investigation. For example, in the case of an alleged assault, you may wish to start by speaking with the victim of the assault in the first instance before moving on to investigate with other witnesses. Equally, if you find there is a need to consider suspending an employee, consider whether you should obtain their version of events immediately before suspending them so that you can ensure there is an efficient and prompt investigation of the incident, in turn will help to keep any period of suspension to a minimum.
Make sure that all investigative meetings with employees are minuted to ensure that accurate witness accounts can be collated. If you have the personnel available, it is advisable to have a minute taker in attendance where possible to ensure that clear and concise notes are taken throughout.
As an investigation officer, always remember that you are simply fact finding and your: Who, What, When, Why and How questions should form the basis of discussions during the investigation.
You should approach an investigation with an open mind and without any presumption of guilt. As an investigating officer, it is not your place to chastise an employee or come to conclusions on the guilt of any employees involved; your role is to fact find and establish what has happened in a matter.
If you want to discuss your organisation’s potential disciplinary issues with a specialist employment lawyer, our friendly team are on hand to hear more about your query.
It’s our mission to advise and develop the employment law capability of HR professionals wherever we can, helping HR teams make a real commercial difference to their organisations. That way, you spend less time solving operational issues and more time actioning projects that drive far-reaching change in your company.
Call 0333 006 2929 or email email@example.com today to discover exactly how we can help you.
Senior solicitor, ESP Law Ltd
Jessica is a pragmatic employment solicitor and litigator with a range of experience in both private practice and in-house. Having begun her career in a Trade Union firm she made the move to exclusively advising businesses over 10 years ago. Her breadth of experience includes advising clients in the retail, manufacturing and transport sectors and immediately prior to joining esphr, she worked as an in-house employment lawyer for a national care charity with over 5,000 staff.