Workplace investigations can be used in various situations when more facts are needed to make a decision. For example, management should carry out investigations when they receive a grievance or when they are conducting a disciplinary process, as an investigation will allow them to make an informed and impartial decision.
Disciplinary procedures should all include a complete investigation, and conducting a fair and objective investigation is crucial to a fair disciplinary procedure. It is a fact that many employment tribunal cases are lost because of a poor investigation. Therefore, you should not take the risk of not carrying out a thorough investigation before deciding the outcome for the employee.
In order to have a fair process, firstly you should appoint an appropriate investigating officer. This should be a person who is not directly involved with the matter which needs investigating. For instance, if conducting a grievance investigation, it should not be the person against whom the grievance has been lodged, or if it is a disciplinary investigation, then it should not be a witness to the act warranting the investigation. Also, the employer should consider whether a suspension is necessary as a holding measure during the investigation; an employee should usually be suspended if the allegation involves serious misconduct or a more severe act.
Although there is no statutory right to be accompanied during an investigation meeting, you should consider whether it is appropriate to allow the employee to bring a companion, perhaps it may reasonable if they have a limited command of English. It may be necessary to allow a companion if it is a reasonable adjustment for a disabled employee. During the investigation, it is important to keep detailed notes or minutes of any meetings you have held with witnesses. Make sure you conduct a meeting with the accused employee and inform them of the allegation first. Ask all witnesses to sign the notes or minutes taken during the meeting to confirm that they are an accurate account of the discussion.
The extent of any workplace investigation should be reasonable for the gravity and scale of the allegation. For example, if the allegation is not very serious, then the investigation should not be extensive and take unnecessary time to complete. Equally, if the alleged act is of a serious nature and could give rise to a dismissal, then during the investigation you need to collect enough evidence to justify that dismissal was a reasonable outcome.
Alan Price is employment law director of Peninsula.
