LAW-CALL

Disciplinaries: An investigation guide

The team at Law-Call, a 24-hour legal helpline available to Alliance members, explains the first stage of the disciplinary process

Image

A common question we get at LawCall is: how should an employer be expected to conduct themselves when investigating an allegation of inappropriate behavior against a member of staff? While you should not lose sight of that fact that there are important legal requirements that must be met, at the very heart of it a disciplinary meeting remains an internal process.

It helps if the process is broken down into three stages:

1 investigation
2 disciplinary
3 appeal

In this article, we will discuss stage one: investigation. We will cover the later stages in the next issue of Under 5.

Getting started

An investigation is the least formal part of the process. This is the time to establish the facts in a fair and objective way. That said, this is also the first step if matters do move on to a formal disciplinary process. If a reasonable and thorough investigation is not completed before a hearing, this can negatively impact decisions that you may wish to take later on.

Policies and procedures

You should have a disciplinary procedure that reflects the ACAS Code of Practice on Disciplinary and Grievance Procedures as a bare minimum. The disciplinary policy may include an outline of how the investigation process should be conducted or who should conduct it.

If the policy names an investigating officer, do not blindly follow this if their impartiality could be challenged. For example, if this person is a witness, a friend or if their allegations involve their child, someone else should undertake the investigation.

Next steps

Investigations should start immediately as delays may also undermine possible future outcomes. Start off by exploring the preliminary allegation. For example: Edith believes that Joanne is keeping her mobile phone about her person while with the children. You will need to speak with Edith as well as potential witnesses.
If the decision is that witness statements are required, then have the staff write these themselves. Ask for statements to be as detailed as possible and ask witnesses to sign and date the records. A witness statement should be a contemporaneous record made as close to the time of the alleged incident as possible.

Other evidence, such as CCTV, work records including children’s learning journeys or e-mails may be required. Evidence from non-work platforms, such as on social media, will require the consent and cooperation of participants. Take copies of records as they may need to be collated if a more formal process is required.

Confidentiality

As not all investigations will lead to a disciplinary meeting, it is important that the investigating officer conducts matters diplomatically and ensures that all parties concerned are aware of the need to keep matters confidential.

Investigatory meeting

In our earlier example, if the investigation found that Edith was mistaken then no further action would be necessary. However, if there appeared to be some merit behind Edith’s allegation, it may be reasonable to convene and investigatory meeting, if it is a contractual requirement. Your investigation should have provided a list of topics to discuss to structure the meeting. If there is sufficient evidence, you can proceed straight to a disciplinary hearing but we would advise that you contact Law-Call to discuss this first.

Since the Covid-19 pandemic, investigatory meetings can be held via Zoom or Teams if an employee cannot immediately be called into the meeting due to being off sick when the allegation is made. We advise that you contact Law-Call to discuss this option in advance. The meeting can be recorded, but be mindful of storing it in compliance with GDPR.

An investigatory meeting aims to establish facts in a fair and objective manner. The investigating officer should not try to make a judgement based on preliminary facts as the employee may have a reasonable explanation. They should ask a mix of open-ended and closed questions and be prepared to ask probing questions where necessary. Detailed notes should be taken and it is good practice to have the employee read and sign these as agreement that they are an accurate reflection of the meeting.

Next steps

Producing a report is good practice – ACAS has a suggested investigation report template available on their website. Remember that this is not a disciplinary – it is not the investigators role to make findings of fault, but to establish the facts.
Law-Call believes that suspension should only be used as a last resort – for example when there is reasonable belief that an employee will sabotage an investigation, disrupt work or conduct themselves in an improper way and cannot be supervised.

Find out more
For more detailed advice on investigatory and disciplinary practices, Alliance members can contact Law-Call 24 hours a day, seven days a week. Their contact details are available in the members’ area of our website at portal.eyalliance.org.uk