Disciplinary Investigations – How do I handle it?

Rachel Richardson , Director at Tughans, considers the following problem and offers some practical advice:

I am an HR manager and have been investigating an allegation that one of our employees has been sending our confidential information to a competitor without any prior authorisation.

I have taken several witness statements as part of my investigation, but given the gravity of the allegations, I don’t propose to meet with the employee in question. Instead, the disciplinary panel can put the allegations to him during the hearing, which I have already invited him to attend. Am I safe to proceed, without asking the employee in question to take part in my investigation?

The short answer to your question, is no.

To proceed to a disciplinary hearing, without having first put the allegations to the employee as part of an investigation, could suggest that the employer has already made up its mind and that any subsequent disciplinary action has been pre-determined. Any investigation must be conducted fairly and thoroughly. Importantly, it must involve the employee against whom the allegations have been raised, so that they have an opportunity to respond to them.

The need for an investigation to take place prior to any disciplinary action is crucial, if an employer does not wish to fall foul of the principles of fairness established by case law and also the LRA Code of Practice on Disciplinary and Grievance Procedures.

I suggest you should cancel the disciplinary hearing immediately and write to the employee inviting them to an investigatory meeting. Make sure that letter clearly sets out the disciplinary allegations in question, gives them enough notice to prepare for that meeting and enclose any relevant documentation you wish to discuss with them and upon which the Company will rely.

As regards the investigation itself, remember the following key points:

  • as investigating officer, you should remain objective: your role is one of fact finding, it is not to decide on the guilt or otherwise of the employee in question;
  • carry out your investigation as quickly as possible, don’t delay it;
  • at the outset, identify all key witnesses and evidence which you will need to consider: you may need to re-interview witnesses as the investigation progresses and new witnesses may arise as the matter develops;
  • check your disciplinary policy regarding rights of accompaniment: some employers allow this at investigation meetings, as well as of course, at the disciplinary hearing;
  • keep the investigation confidential and remind witnesses of this;
  • organise a note-taker for the investigation meetings: you could then send the minutes to the witnesses and ask them to confirm that they are a true record of the meeting;
  • when you are compiling your report, include all relevant evidence and provide a summary: do not arrive at any disciplinary decision, that is not your role but the role of any subsequent disciplinary panel;
  • always bear in mind the recommendations contained in the LRA Code of Practice on Disciplinary and Grievance Procedures: ACAS have also published some excellent guidance on Conducting Workplace Investigations.
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While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.