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Conducting Disciplinary Investigations

Conducting Disciplinary Investigations

16/11/2017

At the heart of every fair conduct dismissal will be a genuine investigation into the employee’s alleged guilt. If an allegation of misconduct arose in relation to a member of your staff, would you know how to conduct a good quality investigation? We explore some of the key factors to consider including typical formats, interviewing witnesses and gathering evidence.

  1. What is the purpose of an investigation?
  2. Who conducts the investigation?
  3. Suspension
  4. Confidentiality
  5. The format of the investigation
  6. The role of witness statements
  7. How should witness statements be taken?
  8. Effective questioning and listening methods
  9. Recording information
  10. Informers
  11. Anonymous witnesses
  12. Witnesses who are not employees
  13. Interviewing the employee
  14. Gathering other evidence
  15. The rights of the employee
  16. New allegations about the same employee
  17. New allegations against other parties
  18. Reviewing the evidence
  19. Preparing for the hearing

 

What is the purpose of an investigation?

In summary, an investigation is conducted in order to:

  • Establish the facts;
  • Determine that the substance of allegations is clear;
  • Ensure as far as possible that any subsequent disciplinary action is fair and reasonable.

 

Who conducts the investigation?

In some cases, the immediate line manager will be the appropriate person to conduct the investigation if he or she has the time and competence to do so. The investigator should not, however, be the same person who conducts any subsequent disciplinary hearing.

In the interests of impartiality it may be preferable if another manager not immediately connected with the reporting line takes the role of ‘investigating officer’, such as a deputy head.

In some cases there may be a need for someone with specialist knowledge to take the role, such as an accountant if the allegations relate to missing money. The investigator should, for obvious reasons, not be a key witness. When defining roles at this early stage it will also help to consider the lines of appeal should the investigation proceed to disciplinary action, to ensure that those people will not be involved with the investigation.

 

Suspension

In instances of very serious misconduct – where dismissal would be the likely outcome if the allegations were to be proven – it may be appropriate to suspend the employee on full pay.

Suspension is, however, a significant act and adequate consideration should first be given to whether it is justified and whether there are any alternatives. This consideration should be documented. A ‘knee-jerk’ suspension where the employer has failed to consider alternatives and whether the grounds for suspension are reasonable could amount to a breach on the employers’ part of the implied term of mutual trust and confidence.

Circumstances in which an employee is more likely to be justifiably suspended include where there is an identified threat to the school/college or other employees, or if it is impossible to properly investigate the allegation if the employee remains at work. Suspension is no longer considered to be a neutral act so should be handled carefully. The employee should be provided with the name of a contact person they can liaise with and directed to sources of support. In any case, the period of suspension should be as short as possible.

 

Confidentiality

The question of confidentiality during the investigation requires some early thought and applies both in relation to the person conducting the investigation and to any person, such as a witness, who is involved in the investigation. Consideration should be given to whether fellow employees interviewed as witnesses need to be told the name of the employee being investigated. Obviously, this cannot be avoided in all cases, particularly in situations of individual misconduct, but there will be circumstances where it is possible to gather information without revealing too much detail. Witnesses should be asked not to discuss the investigation with other employees or third parties.

 

The format of the investigation

Investigating an allegation of misconduct or poor performance should be done quickly, while memories are fresh. In some cases, however, an outside agency will need to be consulted before an investigation can begin, for example the police if the case may involve criminal activities or the designated officer(s) at the local authority (often referred to as the LADOs) where allegations of a child protection nature have arisen.

A balance must be struck between the employer’s need to gather information for the investigation and the employee’s right to be treated fairly and reasonably in accordance with the implied duty of mutual trust and confidence. An employer must not use the investigation as an excuse to ‘dig up some dirt’ on the basis that there’s bound to be something which could be used as the basis for disciplinary action. However, if new information comes to light during the investigation, this should be looked into.

The investigation will generally include the following stages:

  • Collecting witness statements;
  • Collecting documents or other information which relate to the allegations;
  • Reviewing all evidence to decide whether further investigation is required;
  • Providing a summary report to inform the decision as to whether further action is necessary.

 

The role of witness statements

The statements taken from any witnesses will form part (and sometimes all) of the evidence against an employee.

The statements of any available witnesses should be taken as fully and quickly as possible.

Care should be taken to evaluate individual versions of events for error, bias and personal opinion.

 

How should witness statements be taken?

Unless circumstances make it difficult to do so, the investigating officer should take witness statements in person. This helps to ensure that statements are ordered and clear, rather than a collection of possibly disorganised thoughts which do not address the salient points. The investigating officer should, however, take care not to lead the witness and therefore questioning should be pre-planned and appropriate.

 

Effective questioning and listening methods

Questioning methods

Generally, the most effective type of questions are open questions: those that encourage the witness to open up and respond in more detail. Open questions are prefixed with words like ‘how’, ‘who’, ‘what’, ‘why’. The witness should be encouraged to think carefully without being prompted by the content or phrasing of the question.

Closed questions (those which elicit only a ‘yes’ or ‘no’ answer) are less useful as they do not encourage further dialogue which may draw out useful information. However, they have an effective role in clarifying points, particularly if the witness is being vague or uncertain of what facts are relevant, e.g. “were you working in the office on Monday 5th June?”

Leading questions should be avoided since such questions normally give a strong indication of what the required answer should be, potentially biasing the outcome of the investigation. Avoid questions like, “If you were in that situation, you would have known that was the wrong thing to do, wouldn’t you?”

 

Listening methods

The investigating officer should:

  • Avoid tuning out of the conversation when nothing relevant appears to be forthcoming.
  • Avoid interrupting or guessing the end of a sentence.
  • Avoid losing concentration or becoming easily distracted by peripheral “noise”.
  • Use body language to encourage information (e.g. nodding to show understanding, leaning forwards to show attentiveness).
  • Regularly repeat key information back to the witness to ensure that it is accurate and to demonstrate that he/she has fully understood what has been said.

 

Recording Information

Witness statements must be clear, concise, accurate and easily understandable, written down in a formal way, and detailing the following:

  • The date, time and place of incidents (a series of events should be recorded chronologically);
  • How able the witness was to observe the incident clearly and accurately;
  • Relevant circumstantial evidence such as the individual’s knowledge of working arrangements, his/her reasons for being present and viewing the incident, and why he/she remembers certain small details; and
  • Whether the witness has suffered at the hands of the accused or has any other reason to fabricate or exaggerate evidence.

Witness statements should be signed and dated by the witness.

 

Informers

Occasionally, an initial allegation of misconduct will come to a manager or employee from an individual or individuals (usually other employees) who do not wish to be identified. An informer should be asked to produce a witness statement in exactly the same manner as any other witness. The statement should be taken in full, accepting that it may be necessary subsequently to omit part of the statement before showing it to other people (including the employee who is the subject of the investigation) to preserve anonymity.

The statement should also explain the reason why the informer wishes to remain anonymous. Efforts should be made to try to corroborate the information. Further investigations should be carried out to try to confirm or refute what he/she has alleged. Tactful enquiries should be made into the character and history of employment of the informer so that the reliability of evidence may be tested.

The employee who is the subject of the disciplinary investigation should be given as much information as possible about what the informer has said. He should be given a copy of the written statement of the informer (with necessary omissions to avoid identification if necessary).

 

Anonymous witnesses

Sometimes witnesses who are approached to give evidence as part of an investigation are understandably reluctant to give information which may potentially lead to a colleague being disciplined or dismissed. Attempts should be made to address concerns which they may have by talking through the investigation process, how notes will be taken, what will be disclosed, rights and responsibilities regarding confidentiality and concerns about reprisals.

No guarantee of complete confidentiality can be given to the witness, even if his/her statement is initially presented in an anonymous format as part of the investigation. There will always be a risk that subsequent criminal or tribunal proceedings are instigated and the accused employee will seek disclosure of the witness statements or notes of interviews, which will identify the witness.

In ordinary disciplinary proceedings, however, the anonymity of witnesses may be protected provided it does not reduce the ability of the employee under investigation to fully understand the case against him or her. It is not necessary as a matter of course for the employee to know the identity of witnesses. What is important is that the employee knows the case he/she has to answer, therefore he/she needs to know what allegations have been made in order to respond to them in an informed way.

Where evidence is offered only on the basis of a guarantee of anonymity (insofar as it can be offered), attempts should be made to verify evidence given, using other statements or documents. The reason for requesting anonymity must be recorded with the statement, and consideration must be given to any underlying reason why the witness does not want to be known.

 

Witnesses who are not employees

There may be occasions when the witnesses are not the school’s/college’s own employees (they may be parents, pupils or contractors for example). If this is the case they should be asked to assist in the investigation where appropriate, for example by providing a written statement. This will help to show that reasonable steps have been taken to conduct a thorough investigation. However, the investigating officer will be reliant upon their voluntary cooperation. If a witness who is not an employee decides he/she does not wish to give a statement, this fact should be recorded.

The use of child witnesses should be avoided wherever possible, for example where the information could be obtained from another source. If their evidence is likely to be significant, however, a child may be interviewed and a witness statement taken if the child agrees. Parents of younger children should agree in advance to this (parents should be made aware in all cases) and should be allowed to be present if the child wishes it. Ideally such interviews should be conducted by someone well versed in communicating with children and it is best to take advice from HR or the LADO as appropriate.

 

Interviewing the employee

In the majority of cases, it will be necessary for the investigating officer to meet and take a statement from the employee who is the subject of the allegation(s) in order to obtain his or her account of the events. It would also be advisable for the investigating officer to ask the employee whether he or she is aware of any other witnesses to the incident or any other documents or issues that he or she believes are relevant so that the investigating officer can follow these up.

In some cases it may be necessary for CCTV evidence to be checked if such surveillance exists. Extraction of such evidence should be in accordance with internal policies and with due regard to data protection law.

 

Gathering other evidence

Consideration should be given to what, if any, other evidence can be gathered. The type of evidence which is relevant will depend on the allegations which have been made. Evidence might include:

  • Emails;
  • Documents such as letters, timesheets, signing in sheets, notes, records of phone calls;
  • Physical items (e.g. if there has been an allegation of theft the investigation may have been prompted by the uncovering of allegedly stolen articles).

Employees have a reasonable expectation of privacy when it comes to personal communications; reading emails which are obviously personal raises issues under the Data Protection Act 1998 and other legislation. If allegations of misconduct involve inappropriate use of IT equipment, HR and IT personnel should be involved to ensure a consistent and compliant approach is taken.

 

The rights of the employee

There is a fine line to be drawn between the need to investigate fairly and respecting the rights of the employee being investigated. Regard should be given to the implied duty of trust and confidence owed to the employee: an employer must be careful that any investigation conducted is no more than is necessary to ascertain the full facts, as is the case in any search for physical evidence.

Thought should be given to what message is communicated to other staff and third parties if an employee is suspended, taking particular care that any statement made does not portray an assumption of guilt that could prejudice the fairness of any subsequent disciplinary hearing. Generally speaking information should be given out only on a ‘need to know’ basis. It is not normally necessary for those outside the investigation itself to know that the employee is suspended, only that he or she will be absent from work.

 

New allegations about the same employee

Where new allegations come to light concerning the same employee, the employee should be informed of the new complaints and advised that these will also now be investigated. The employee will need to know that there is likely to be a delay in delivering the outcome of the investigation while the new allegations are under investigation, and it may be necessary for the employer to hold a further investigatory meeting with the employee to enquire into the new matters from his or her point of view.

If the employer wishes to rely on the new allegations at a forthcoming disciplinary hearing, there must have been a full investigation into them and the employee must have had advance notice and a full opportunity to answer them at the hearing itself.

 

New allegations against other parties

Should the employee under investigation make allegations about another employee or employees, this may give rise to the need for an investigation into the allegations made. This should commence promptly and could give rise to disciplinary action against other parties.

Should the employee raise a formal grievance, either during the investigation or as part of any resulting disciplinary action, consideration should be given as to whether the process needs to be delayed in order to address the grievance, or whether the grievance can be adequately addressed as part of the hearing or appeal process. It is recommended that in such circumstances further HR advice is sought.

 

Reviewing the evidence

The investigating officer should review the statements and documents which have been gathered to establish whether a picture is emerging and whether there are any gaps in the evidence which can be filled.

The investigating officer should compile the information gathered during the investigation so that this can be submitted to the employee and to the person(s) who will hear the case for disciplinary action. This information will usually amount to a set of statements and any other documents that will be relied upon. Except in simple cases this usually takes the form of a written report. The employee should have the opportunity to see these papers at least a few working days in advance of the hearing (policies will often provide a timescale for this). Last-minute presentation of papers to the employee may well justify an argument that the employee has had insufficient time to prepare a proper response to the allegations. In such a case, where there is no clear justification for the late presentation of evidence, it may be appropriate to adjourn the disciplinary hearing for a few days.

 

Preparing for the hearing

The employer should write to the employee to confirm the outcome of the investigation and set out the allegations and the basis of the allegations, enclosing any documentation to be relied upon. This information together with an invitation to the disciplinary meeting should be sent to the employee, preferably by registered post (or given in person).

The investigating officer may need to attend the disciplinary hearing, or at least be available by telephone, to provide any points of clarification.

If the investigation has failed to substantiate the allegations, the employee should be informed of this as soon as possible and, if suspended, invited to return to work on an agreed date. A meeting should take place as soon as possible upon return to ensure that the employee can be properly reintegrated into work and any concerns are addressed.

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Last updated: 16/11/17

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