Workplace investigations are necessary to establish what happened. Yet many organisations struggle with a deceptively simple question: who decides if an investigation goes to a disciplinary hearing? The answer is that it would typically be part of the investigator’s role to decide whether or not it would be appropriate for the matter to progress to a disciplinary hearing. In some circumstances, depending on the policies of the organisation, the investigator may simply make a recommendation (rather than the decision) and it would be for another person, such as the individual who commissioned the investigation, to make the decision. Whoever the decision maker is, it is important that, wherever possible, that individual does not make other decisions relating to the disciplinary process, such as deciding what the outcome of the disciplinary hearing should be. For more information on can the same person conduct both investigation and disciplinary? Read our blog
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What is the purpose of an investigation?
An investigation is a fact-finding exercise. Its purpose is not to determine guilt or impose sanctions, but to gather evidence, establish what happened, and assess whether there is a case to answer. To that end, investigations may involve reviewing documents, obtaining material, interviewing witnesses etc.
The investigator will typically produce an investigation report summarising findings and recommending whether the matter should proceed to a disciplinary hearing.
What criteria should be used to decide whether the matter should progress to a disciplinary hearing or not?
It is important not to consider the issue in terms of criteria or thresholds. This is because what needs to be decided is simply whether there is sufficient evidence to conclude that disciplinary action may be appropriate. If that is so, it would be for the disciplinary panel to decide what, if any, sanctions should be. Read our blog for more information on does gross misconduct always lead to dismissal?
When investigations should not proceed to disciplinary hearings
An investigation may reveal evidence which indicates there is not a case to answer and therefore disciplinary action would not be needed.
Action is regarded as informal in circumstances when the action taken cannot result in a disciplinary sanction (such as a written warning) being imposed. When informal action is taken, and no disciplinary sanctions are contemplated, a disciplinary hearing is not needed. An example of when a disciplinary hearing would not be required would be when a letter of concern is issued. For more information on this topic, read our blog what is a letter of concern?
What should be written in a disciplinary investigation report?
The length and complexity of disciplinary investigation reports vary substantially depending on the issues involved, the number of individuals concerned, the quantity of relevant material and the style of the author.
The investigation report will typically set out the allegations, the names of people who have been interviewed, any material that has been reviewed such as interview statements, policies etc. Following that overview, findings should be expressed. However, it is important that these findings do not express a view on whether those allegations are well founded or not. Similarly, the disciplinary investigation report should not express opinions on the likelihood that the alleged actions occurred. This is so because the disciplinary investigation report should only make findings regarding whether or not the matter should progress to a disciplinary hearing.
Similarly, it is important that the disciplinary investigation report makes findings relating to each allegation. This is because there are a number of outcomes that may arise from the investigation. For example, the investigation may conclude that none of the allegations should progress to a disciplinary hearing, there could be findings that some allegations should be progressed to a hearing but not others, or perhaps it was found that all the allegations should be considered at a disciplinary hearing.
Undertaking a thorough investigation enables informed decisions to be made regarding next steps. If the employee were to be dismissed, and then pursue an unfair dismissal claim, the material relating to the investigation is likely to be highly relevant evidence. Similarly, it may be appropriate for the investigator to give evidence at the Employment Tribunal regarding how the investigation was carried out and the reasoning for any decisions reached.
Regardless of whether or not the matter progresses to a disciplinary hearing, it is important that the employee is fully aware of the situation. For example, employees should be informed that an investigation is being undertaken and advised of the allegations being investigated. It is important that the employee is given a fair opportunity to explain what happened and for that version of events to be fully explored as part of the investigation. Read our blog how to be successful at a disciplinary hearing for more information on a disciplinary hearing.
Plotkin & Chandler works exclusively in the areas of HR and employment law.
If you are an employer who would like advice on disciplinary matters, you would like assistance with carrying out an independent investigation, undertaking a disciplinary hearing, you would like to discuss training for your organisation or you need assistance on defending an Employment Tribunal claim, we can help.
If you are an employee and would like advice on the disciplinary process or you have been dismissed and would like to discuss bringing an Employment Tribunal claim, we can help. Please contact us on 020 3923 8616 to discuss your needs and requirements or email us on info@plotkinandchandler.com
