When you have eliminated the impossible

Thursday 19th November 2020

Any process you run as an employer will involve some sort of investigation.

The investigation has to take place before the decision in either a disciplinary, capability or a grievance matter. In fact the investigation may bring to light information which means that the procedure, particularly a disciplinary procedure, does not need to go any further.

Further the investigation might lead to the allegations being changed so they are more accurate e.g. an allegation is made of theft, the investigation shows that there was in fact no theft but there was a breach of procedure in the handling of money and so the appropriate disciplinary action will be in relation to the breach of procedure rather than the original allegation of theft.

An employer has a reasonable amount of latitude as to what will be a reasonable investigation provided it can be found to be within “the band of reasonable responses”. Clearly if a forensic investigation of the scene is not proportionate to the allegation, size of the organisation, the circumstances of the grievance or the likely sanction then one clearly would not be required; but as a minimum the Tribunal would expect to see witness statements of those involved.

In order to decide what is reasonable the main rule is that the more serious the allegation and possible outcome the more thorough the investigation should be.

It would be reasonable for you to take any admission on face value, without further investigation however, it is advisable for a limited investigation to still be carried out – is the employee being truthful in their admission, are they covering for someone and if so why.

Customers are not always right! So if a third party does make an allegation against one of your employees you should not have a knee jerk reaction. You also do not have to and should not let the third party have knowledge of the procedure as it is being conducted as you do have duties under the Data Protection Act with regard to the employee being investigated. You should however get a full witness statement from the third party and investigating any other sources.

If an employee does admit guilt you cannot turn the investigation meeting into a disciplinary hearing. You still need to go through the stages and hold a disciplinary hearing so the employee has an opportunity to see all the results of the investigation and state their case and any mitigating factors.

Employees have no statutory right to be accompanied at any investigatory meeting, although a contractual disciplinary procedure may give them such a right. Employers should, however, bear in mind their obligations to disabled employees under discrimination legislation, which provides that employers must make reasonable adjustments where their premises or working practices put a disabled person at a substantial disadvantage to others, which could include allowing them to be accompanied to an investigation meeting. 

Evidence needs to be captured in an even handed manner – the investigator is not just looking for evidence that will condemn but also evidence that will exonerate. It should also be gathered as quickly as reasonably possible.

You will need to consider whether the employee needs to be suspended to allow a full investigation to take place. Will their presence hinder a full and proper investigation? It is really only in cases where there are allegations of serious misconduct or incompetence, where the employee’s continued presence in the workplace would render an investigation impossible, or where working relations have broken down and there is no other way of avoiding conflict while the matter is resolved, which would mean that suspension is appropriate. The employee should be suspended on full pay and a formal letter confirming the terms of the suspension (and a point of contact in the company for the employee) should be sent to them.