Handling investigations into potential misconduct can be tricky. Failure to follow a fair and reasonable process can leave the business facing legal claims, including a claim for unfair dismissal on the grounds that the dismissal was procedurally unfair. Here are six key points for employers to consider when handling a disciplinary investigation to help minimise risks.
Many employers will have a disciplinary policy. Failure to comply with this policy may lead to any subsequent dismissal being held to be unfair in an Employment Tribunal claim. As well as this, if the employer has not followed the ACAS code (ACAS is a quasi-government body that publishes best practice) this can result in the employer being required to pay increased compensation, should they lose such a claim.
Investigators should be sufficiently senior and sufficiently independent. This will often be someone from the business like a line manager but they can also be external.
Employers may want to consider if the investigator is truly impartial and independent of the matters being investigated. As if they are not sufficiently independent, this can lead to a Tribunal finding a dismissal was procedurally unfair.
Employers can also help reduce their risk by using experienced investigators and/or providing training in handling investigations.
The requirement is for the investigator to carry out as much investigation as is reasonable in the circumstances to decide what they believe most likely did or did not happen on the balance of probabilities (their ‘findings’).
Note that the more serious the allegations typically the more involved an Employment Tribunal would expect an investigation to be if it is later challenged in a claim.
Normally, the investigator's findings should be provided in writing in a report or letter, explaining: the issues that were investigated; what evidence the investigator considered; their findings and the reasons they reached those findings.
Once the investigator delivers their findings, it is often appropriate to provide these to a different person to decide whether to trigger a disciplinary process and following this what (if any) disciplinary action to take. Otherwise, this can lead to an employee successfully claiming that any decision to dismiss them was procedurally unfair.
Handling investigations promptly and keeping the employee updated as to the progress of the investigation and of any delay can help reduce the risk of the employee raising a complaint or claim about the process.
Handling disciplinary investigations can be tricky. It can also throw up curveballs such as employees unexpectedly being off sick during their investigation or where the investigation overlaps with a criminal investigation. Where tricky issues do arise, it may be sensible to take advice to help minimize the risks to the business.
Note that to successfully defend an unfair dismissal claim an employer must show not just that it followed a fair process, as explained in this note, but also that (i) it had a potentially fair reason to dismiss and (ii) the decision to dismiss was a reasonable one. See our note on dismissing employees in the UK for more information on the latter two issues.