A few months ago, we covered the case of Tykocki v Royal Bournemouth & Christchurch Hospitals NHS Foundation Trust where the seriousness of the allegations made against the claimant meant that the employer’s limited investigations were insufficient to lead to a fair dismissal.
With this case in mind, what steps can be taken by employers to ensure that employee investigations are carried out in an effective manner and in a way that can contribute to the employer’s defence if a claim is brought against them?
If allegations of misconduct have been made, the employer should carry out an investigation but it should be limited to discovering the facts of the situation and not making any formal disciplinary decision.
There are five main stages through which employee investigations should pass:
1. Consider whether carrying out an investigation is actually needed. If the grievance is relatively low-level, the employer should consider whether matters can be resolved informally. However, it is worth remembering that if the employee misconduct is glaringly obvious, the presumption should not be made that there is no point in holding an investigation i.e. that the matter is an open and shut case. There may well be a good explanation for the misconduct and the employee should be allowed to put their case. A thorough investigation, even when it seems that there is no need for it, will serve as evidence in later proceedings that the employer followed the requirements of HR law regarding the disciplinary process.
2. Tempting though it may be to hold an immediate investigation, to strike while the iron is hot, the employer ought to plan the process so that it does not go off the rails or end up causing more problems than it solves. Planning things out in advance can avoid the accusation that the investigation has been badly handled or is disproportionate to the gravity of the offence being considered.
Things to be considered when planning how the investigation is to take place include:
The nature of the allegation.
Should legal privilege be considered – and should legal representation be sought?
What actions should be taken while the investigation is ongoing – e.g. suspension, reassignment, etc.
Review or inspection of emails and company devices – and how to involve IT in such procedures as well as employee consent for such searches.
3. Once the employer has planned how they are going to conduct the investigation, they can begin to establish the facts surrounding the case. Interviews can be held and evidence gathered to find out the truth behind the allegation or grievance that has been made.
As in the case of Tykocki, the severity and implications of the allegations will determine the level of the investigation to be carried out.
At this stage, the investigation is not a disciplinary hearing and there is no pre-determined outcome for it. It may well be that the investigator realises as they gather their evidence that it starts to point to the exoneration of the employee. If this is the case, there should be no attempt to bury evidence in order to achieve a particular result; if the evidence clearly indicates that there is no substance to the grievance or allegations, this should lead to the conclusion of the disciplinary process.
Since no disciplinary action is being taken during the investigation, there will be no legal requirement to issue a formal invitation to the employee to attend. However, it may be a good idea to allow them to present any additional information they feel is germane to the case.
If the employee is invited to attend, they do not have the right of accompaniment by a work colleague or Trade Union representative. However, to support the employee during the process, representation may be permitted.
Rather than an unstructured and informal interview process, the investigator should ensure that they have a template prepared beforehand that ensures all interviews are conducted to the same standard. This can avoid accusations that the employer is trying to rig the outcome of the disciplinary process by steering interviewees and bending the evidence they present.
4. When the employer has finished the fact-finding exercise, they can consider their findings and decide on how to proceed.
It is also worth considering that if legal privilege has not been invoked, any documentation that has been created during the investigation might be subject to disclosure if legal proceedings are instituted at a future date.
5. If the results of the investigation lead the employer to conclude that they need to take formal action that could lead to disciplinary sanctions such as a written warning or termination of employment, they should hold a separate disciplinary meeting. During this meeting, it is important that they follow the disciplinary procedures that are laid down in the company’s handbook.
If the investigation concludes with a decision that disciplinary action will be taken against the employee, they should be provided with copies of the statements and evidence that the investigation has gathered, attached to the invitation to attend the disciplinary meeting.