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An inadequate or unfairly conducted investigation can taint the whole disciplinary process and render a dismissal unfair. It could even encourage an employment tribunal to draw an inference of discrimination in some circumstances.
To avoid claims for unfair dismissal, you will have to satisfy a tribunal that any decision to dismiss, including the procedure by which that decision was reached, fell within the range of reasonable responses which a reasonable employer in those circumstances might have adopted. So what are the key points which you should follow to avoid unfairness at the investigation stage of the disciplinary process?
Take into account your own disciplinary procedure and the ACAS Code of Practice on Disciplinary and Grievance Procedures.
Save in exceptional circumstances, it is difficult for an employer to justify failing to follow the standards and procedures which it has set for itself. Tribunals have a duty to consider the ACAS Code in determining procedural fairness.
Unless you are a very small employer or there really is no alternative, make sure that different managers are responsible for carrying out the disciplinary investigation and determining the outcome of the disciplinary hearing.
The investigator should not be more senior than the person who determines the disciplinary hearing and, as far as possible, should be independent, objective and not involved in the relevant facts or incident.
Carry out the investigation without unreasonable delay in order to establish the facts.
Make sure that suspension is not a 'knee-jerk' reaction to allegations of misconduct - it could constitute a breach of mutual trust and confidence (see Crawford v Suffolk Mental Health Partnership NHS Trust).
Where suspension is really necessary (eg to protect evidence or witnesses), make it as brief as possible, keep it under review and make it clear to the employee that suspension is a neutral act and not a disciplinary sanction. Suspension should also comply with any conditions set out in the contract of employment.
Inform the accused employee of the likely timescale of the suspension. He should be told if the suspension is likely to take longer than expected.
Gather all relevant documentary and other evidence.
Obtain statements or at least notes of interviews from the relevant witnesses, which should preferably be signed or approved by those witnesses.
Consider whether it is necessary or appropriate to interview the accused employee at the investigation stage and, if so, whether he should be accompanied. Beware of interviewing the accused employee alone and preferably take a colleague as a witness.
Unless your own procedure provides otherwise, there is no statutory right for an employee to be accompanied at a formal investigation meeting - although you could allow it.
However, make it clear that the interview is to find facts and that no decision will be taken in or as a result of the investigation interview. Otherwise, you may trigger the statutory right for the accused employee to be accompanied by a colleague or trade union official.
The purpose of the investigation is to establish facts and decide whether there is a disciplinary case to answer which should be referred to a full disciplinary hearing.
If the investigator decides that there is a case to answer, he should prepare a written report or summary with supporting evidence and statements to be made available to the accused employee to enable him to prepare for the disciplinary hearing.
For more information please contact Trevor Bettany, Partner
T: +44 (0)20 7427 6421
This article first appeared on the HR and Employment Law website www.hrbullets.co.uk in its Unplugged blog section.