Investigations are typically carried out in discipline and grievance situations, where there is a need to establish the facts of a situation. At the very basic level an investigation is a good basis for decision, it involves a process of gathering all the facts in an objective way before reaching a conclusion.
In a disciplinary situation an investigation is essential to ensure the process is fair. The investigation is the first stage in the process, through the gathering of all the evidence it provides a basis on which further decisions can be made.
In a grievance situation the investigation not only meets the requirements of the ACAS code of practice, it also demonstrates a good working environment by showing that you take employee complaints seriously.
The Legal Framework
Given that investigations are the starting point for disciplinary and grievance procedures, the ACAS code of disciplinary and grievance procedures is our legal starting point. Employment tribunals will take into account whether the ACAS code has been followed when deciding whether the employer has acted reasonably.
In addition to the ACAS code, the tribunal will look at your own internal procedures. Your own internal procedures should be based on the ACAS code but also take into account your business culture. Employment tribunals can be avoided when people feel like they are being treated fairly and their treatment meets their expectations.
If you’re writing your procedures, they should contain enough information that expectations are set but don’t contain so much detail they have the potential to trip you up. We still rely on a 1978 case, British Home Stores Plc v Burchell which sets the expectations of an investigation and disciplinary process. Any disciplinary decision must be based upon a belief that the employee is guilty, that belief is based on reasonable grounds and that comes from an investigation which is as full as it possibly can be.
Whilst we discuss here the disciplinary procedure, it is important to understand the investigation is pre the formal disciplinary procedure. The investigation is about gathering the facts, it is not for the investigator to give opinions. It is important to maintain confidentiality throughout the investigation and remind witnesses of the requirement on them to maintain confidentiality. There is an expectation that employers raise issues promptly and act with consistency.
Responsibilities of the Investigator
The investigation should be carried out by someone who isn’t involved in the disciplinary decision making. This can be challenging for small businesses, especially when you also need to have someone kept out of the process who can hear an appeal should it get to that stage.
The role of the investigator is to gather the facts, which requires speaking to witnesses, gathering documentary evidence and other forms of evidence such as CCTV.
The investigator must not provide any opinion or recommendation on the outcome of a disciplinary procedure.
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Article last updated: 21 March 2021
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