How to...conduct a disciplinary investigation

A reasonable investigation is a vital part of a fair disciplinary procedure. Taking time to establish the facts behind disciplinary allegations can help to ensure that employees feel they are being dealt with fairly and could ultimately save employers from unfair dismissal claims.

1. Introduction to disciplinary investigations

Most managers will, at some stage, have to deal with misconduct by a member of staff. When doing so, it is important to ensure that a fair procedure is followed, or any resulting dismissal will almost inevitably be considered unfair by a tribunal.

2. Key legal principles

An employer needs to be familiar with the rules on who can bring an unfair dismissal claim, the principles of fairness as set out in the ACAS Code and how to dismiss fairly.

In addition, employers need to be aware of their own internal disciplinary procedures.

By what percentage can an Employment Tribunal increase compensation to an employee for an employer's failure to comply with the ACAS Code

  • 15%
  • 25%
  • 45%

3. Starting the investigation

Starting the investigation

  • The investigation should be carried out by the most senior person in the business.
  • The investigation should not be carried out by the same person who will hold the disciplinary or the appeal.

The amount of investigation to be undertaken must be sufficient to enable

Select two options.

  • The chair of any subsequent disciplinary hearing to form reasonable grounds for believing or disbelieving the allegations against the employee
  • The case to be put to the employee in a manner that makes it clear what is being alleged.
  • A criminal court to convict the employee of the alleged misconduct.
  • Any tribunal to decide that every possible witness and avenue of investigation has taken place.

In cases of alleged misconduct, you will usually need to interview witnesses including other employees and potentially gather any other relevant evidence such as CCTV.

4. The investigation meeting

An investigatory meeting with the employee in question will also usually be required at an early stage.

Any investigatory meetings to interview the employee or other witnesses should be held in private and notes should be taken of the meeting.

Try and restrict the number of witnesses to the minimum required to establish what is being alleged. However, do not only interview witnesses who can confirm the allegations.

In cases of suspected misconduct it is appropriate to remind employees who are being interviewed of their duty of confidentiality.

Untitled scenario question

5. Right to be accompanied

During the investigatory meeting who is permitted to accompany the employee?

Select one option.

  • Anyone of the employee's choosing
  • A Trade Union Representative
  • A colleague
  • HR Manager
  • None of the above

6. Dealing with anonymous witnesses

If a witness asks to remain anonymous then you should explore the reason for this request and any underlying motive.

The witness's perceived need for anonymity will need to be balanced against the employee's need to know details of the evidence for and against them.

Consider taking steps to protect the witness's identity, such as editing their statement to remove their name and any other information that may identify them.

7. Dealing with grievances

When an employer receives a grievance during a disciplinary investigation what should they do?

Select one option.

  • Stop the investigation and hear the grievance.
  • Say that the investigation process started before the grievance was raised so the investigation will continue and then the grievance will be investigated.
  • Consider whether or not the grievance overlaps the disciplinary and, if so, deal with both concurrently.
  • Ignore the grievance.

8. Dealing with employees on sick leave

When an employee is signed off work sick the employer must

  • Stop the investigation process and wait until the employee returns from sick leave.
  • Consider the employee's fitness to attend before deciding how to proceed.

When an employee is declared as unfit to work during a disciplinary investigation the investigation does not have to be postponed.

The employer should consider the following (preferably alongside Occupational Health):

  1. Does the employee have the ability to understand the allegations made against them?
  2. Does the employee have the ability to distinguish right from wrong?
  3. Is the employee able to instruct a friend or representative to represent their interests?
  4. Does the employee have the ability to understand and follow the proceedings, if necessary with extra time and a written explanation?

9. Postponement or failure to attend hearing

If an employee fails to attend a meeting through unforeseen circumstances such as illness, the employer should:

  • Rearrange the meeting within a reasonable timescale.
  • The meeting should proceed in the employee's absence and a decision made on the available information.

10. Investigation Report

An investigation report should be completed to use in the decision making process.

Investigation report

ACAS have a good investigation report template

 http://www.acas.org.uk/media/word/0/9/Investigation-report.docx

11. The investigatory decision

Following investigation, the business may decide that no further action is necessary, in which case the employee should be informed of this decision.

However, if matters are to be taken further, there must first be a disciplinary hearing.

12. The written statement

If there are sufficient grounds to hold a disciplinary hearing, a letter should be sent to the employee dealing with the following:

  1. Set out the allegations and the basis for them.
  2. Enclose all evidence you intend to rely on at the disciplinary hearing.
  3. Inform the employee of the date and time of the hearing.
  4. Make clear that the employee has the right to be accompanied by a colleague or trade union representative.
  5. If the employee is facing dismissal that should be made clear.
  6. The employee should be given a copy of the organisation's disciplinary procedure. 

13. Thank you for completing the course.

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