Most employers know the importance placed on the disciplinary procedure to ensure that a dismissal is fair. However, many employers fail to consider the investigation as part of that procedure. Failing to carry out a fair and reasonable investigation in line with the ACAS code of practice on disciplinary and grievance procedures could lead to an overall finding of unfair dismissal. Here are some key steps to consider when carrying out a disciplinary investigation…
First up, you need to make sure that the person carrying out the investigation isn’t connected in any way to the disciplinary allegations. If this is the case, this automatically casts doubt on the fairness of the investigation. Additionally, the investigator should not become involved at a later stage as the disciplinary chair or the person who would be needed to hear any appeal – so before choosing the investigator, think about who will be required to chair meetings further on in the process.
Before investigating, suspension needs to be considered. For serious issues, such as acts of gross misconduct, a failure to suspend the employee whilst the investigation is taking place could undermine the seriousness of the disciplinary allegation. This is because it suggests that the allegation isn’t actually very serious, as they’re being deemed safe to continue to work. This may result in a decision to dismiss being unfair.
The disciplinary investigation should be carried out without unreasonable delay, especially where any company disciplinary procedure outlines a specific timeline for the process. Any delay could lead to a lack of clarity in witness accounts of events.
A fair investigation process should cover, as a minimum:
- Having meetings with witnesses to get their account of the events
- Having a meeting with the accused employee, if necessary, to get their account of events
- Forming witness statements
- Preparing any extra relevant documents or evidence to be used in the disciplinary hearing
Any documentation, evidence or witness statements should be provided to the employee in advance of any disciplinary hearing, so that they have time to prepare their defence.
Making sure that a full and fair investigation is carried out will smooth the way for any future disciplinary action to take place. It will also ensure that no surprises will present themselves at a later date, such as facing a tribunal claim for unfair dismissal.