How to conduct a disciplinary investigation, then decide whether disciplinary action is warranted.

Our article last week gave guidance on suspending an employee during a disciplinary investigation and then deciding who should carry out the investigation.

Building on that, our piece this week looks at how to carry out a full, fair and competent investigation into the allegations and then decide, based on the evidence, whether disciplinary action is warranted or other action may be more appropriate.

Carrying out a disciplinary investigation

Any investigation into unacceptable conduct or poor performance needs to be full, fair and balanced but it does not need to be to the standard of a police or forensic investigation.

According to the ACAS Code of Practice (see www.acas.org.uk) this means that the evidence gained during the investigation needs to be strong enough so the disciplining manager can make a sound decision based on ‘the balance of probability’ rather than ‘beyond reasonable doubt’ as required in criminal Police investigations.

In their guidance regarding such investigations the CIPD (www.cipd.co.uk) advise that there needs to be a clear process including the following steps:

• Gather all relevant initial information that is available e.g. initial reports, photographs, CCTV footage, performance figures, training records.
• Make a list of any potential witnesses, prepare questions beforehand and then interview each individual about what they have seen or heard. Then ask them to confirm the resulting statement or transcript is an accurate record of the meeting.
• When obtaining evidence from witnesses keep it factual where possible i.e. stick to the 5 senses including what the individual saw, heard, smelt etc and avoid asking for their views on areas that are not helpful but may cause disagreement or resentment amongst colleagues after the event e.g. their opinion of the individual. Simply noting the facts is often best and is unlikely to cause offence.
• Having said the above, it is often important evidence to find out how the events made the witness feel. It is a matter of fact if it made them feel embarrassed, sorry for the victim etc and not a controversial judgement that the accused employee should feel aggrieved over.
• Towards the end of the investigation you should interview the accused employee, put the allegations and evidence to them and get their views on what happened. Following this you should then investigate any claims or counter claims they make and interview any further witnesses they put forward (interviewing the employee at this stage may give valuable evidence that helps a subsequent hearing and may also avoid an awkward and time-consuming hearing if there is a simple and logical explanation as to why things happened as they did).

If witnesses wish to remain anonymous this may be acceptable but should be avoided wherever possible, we will cover this issue in a later article.

Full details of how to carry out a thorough investigation can be found in the 186hr ‘Practical Guide to Disciplinary Action’ that also includes the CIPD policy on conducting disciplinary investigations.

The guide is a comprehensive document that includes all you will need in order to carry out disciplinary action fairly and professionally. It contains CIPD approved model policy documents, detailed explanations of each stage of the disciplinary process, CIPD approved model letters covering every eventuality of each stage, along with 2 hours of telephone-based consultation with a highly experienced, highly CIPD qualified senior HR professional. The guide is compliant with the ACAS Code of Practice and costs £249 plus vat. Click here for further details

Although the investigation does not need to be to forensic standards, it still needs to be thorough. I was faced with an interesting challenge regarding this at a Tribunal a few years ago when I worked for a large employer:

An investigation that had been undertaken by HR had shown, on the balance of probability, that the individual had done what he was accused of but the investigation was criticised at Tribunal by the judge because, although thorough, it had concentrated purely on gaining evidence to prove the individual’s guilt and the investigators had not looked sufficiently for any evidence that may cast doubt on that version of events i.e. whether another individual could have been guilty of the act, or a genuine mistake had been made.

Since then I have always advised companies and HR departments to sense check their investigation to make sure it is broad enough not just to give sufficient evidence that the employee is guilty on the balance of probability, but also covers whether any alternative explanations are possible so as not to fall into the same trap.

Investigation policy

Although there is a legal requirement for all organisations to have a disciplinary policy, there is no such requirement to have a policy on disciplinary investigations. However, we find that many customers find this useful as a guide to what process they should follow, as it is normally outside managers’ comfort zones.

The CIPD model policy on conducting a disciplinary investigation is included in the above 186hr ‘Practical Guide to Disciplinary Action’ if you would like to include it as a company policy. Even if you decide not to adopt the policy you may still wish to use it as a guide for managers to follow, to make sure the investigation process complies with CIPD and ACAS requirements / best practice.

If you are not ready to purchase the full 186hr guide, for a free summary of the process to follow when taking disciplinary action please see The 10 Steps of Taking Disciplinary Action

Investigation interviews

Unless your policy states otherwise (not recommended), unlike for a disciplinary hearing you do not need to give anyone, including the accused employee, notice of an investigation interview i.e. you can simply call people in to the office and interview them.

If you decide to give witnesses and / or the accused employee notice of the investigation meeting please see the above 186hr guide for the CIPD model letter inviting a witness to an investigation meeting to adapt to the circumstances. The guide also includes the slightly different CIPD model letter to invite the accused employee to an investigation meeting.

If you would like to view a short video regarding the guide please follow this link below:

The investigator should prepare questions before interviewing witnesses or the accused employee, in line with the above CIPD guidelines, then type up the statement once the meeting has finished and ask the witness to confirm it is accurate.

Representation

Individuals have the right to be accompanied by a Representative at a disciplinary hearing but, unless your policy states otherwise (not recommended), this is not a requirement in investigation interviews, including with the accused employee.

Investigation report

Once the investigator has interviewed all potential witnesses, including the accused employee, and reviewed any documentation or footage of the incident they should write a clear report and pass this to the disciplining manager.

The report should explain the process followed and the evidence found, along with a list of documents such as witness statements, accident book entries, customer complaints etc that are relevant for the disciplining manager to refer to.

The purpose of the report is to summarise the evidence for the disciplining manager to decide whether disciplinary action is warranted and then use the evidence at the disciplinary hearing. It should not include any views as to what outcomes the investigator feels are appropriate – that is not their role, they are purely the investigator not the disciplinary decision maker.

Having said the above, some companies prefer that the investigator should decide whether disciplinary action is warranted, rather than the disciplining manager. Both approaches seem to be accepted at Tribunal although at 186hr we prefer the investigator to remain neutral and complete a report for the disciplining manager to then decide whether or not a disciplinary hearing needs to take place.

The rest of this article assumes that the disciplining manager will decide.

Deciding whether disciplinary action is appropriate

The individual who has been appointed to manage the disciplinary process should review the investigation report along with the evidence and decide whether a disciplinary hearing should take place. This should be based on what specific rules, policies or requirements seem to have been broken or not achieved.

It is important to stress here that, although the manager is deciding whether to hold a disciplinary hearing, they should avoid making judgements as to the individual’s guilt or innocence at this stage. It is the purpose of the disciplinary hearing for the manager to consider whether, on the balance of probability, the individual is guilty of what they are being accused of based on: the evidence; any explanations in the hearing by the individual; plus any mitigation the individual may have e.g. things going on in their personal life that may have influenced them to act as they did.

If the employee raises any mitigation during the hearing this would not change the ‘verdict’ of whether the individual did what they are accused of or not but it may change the sanction if their actions were out of character or largely caused by external influences.

No further action

Prior to the hearing, based on the evidence the disciplining manager may decide that disciplinary action is not warranted, in which case the options available to them regarding next steps are:

• No further action.
• Training.
• An informal warning that does not require a disciplinary hearing.

If the outcome is one of the above 3 options then this should be confirmed to the individual in writing. The relevant CIPD model letters informing an employee that disciplinary proceedings will not take place are included in the above 186hr guide for you to adapt to the circumstances.  The letters include:

• If the matter is resolved via an informal warning e.g. if there was minor misconduct that does not justify a disciplinary warning.
• If training or supervision is the outcome rather than a disciplinary warning for poor performance.
• If there is no case to answer and no further action is required e.g. the employee is able to explain what happened and the disciplinary manager believes the explanation is reasonable.

The individual’s HR file should then be noted and the letter kept on file for future reference as it may be relevant evidence if at some point in the future the organisation needs to discipline the individual for a similar issue or defend a Tribunal claim.

However, you should also be mindful of GDPR / data protection requirements and consider the timescales for which this file note may be relevant regarding any subsequent disciplinary issue i.e. in the same way as disciplinary warnings become ‘spent’ and may not be considered when deciding the outcome of any further disciplinary action the same principle applies to informal warnings.

Disciplinary hearing

If the disciplining manager decides that the evidence shows a disciplinary hearing should take place they should first of all decide which policy is most appropriate i.e. the disciplinary policy, the gross misconduct policy, or the poor performance policy. Then follow it.

A more comprehensive list will normally be contained in the disciplinary policy but examples where conduct related disciplinary action may be relevant would be:

• Poor timekeeping,
• Unauthorised absence,
• Misuse of company property,
• Failure to follow company procedure.

If the actions are considered to be gross misconduct please see the gross misconduct section of the disciplinary policy.  Examples would normally include:

• Theft.
• Fraud,
• Violent conduct,
• Serious act of harassment or discrimination.

For poor performance issues, again see the relevant section of the disciplinary policy for a more comprehensive list, but examples include:

• Failure to achieve target,
• Not adhering to the company service standards,
• Not achieving the required activity levels,

Next steps

The disciplining manager should then write to the accused employee giving them notice of the disciplinary hearing to discuss the allegations against them. We will cover this in our next article.

We hope this article has been useful. If you would like to discuss disciplinary investigations, or any other HR matters, further please contact us