TEMPLATE FOR VIDCAST:
KEY POINTS FOR CARRYING OUT INVESTIGATIONS
INTRODUCTION
I am Diane Gilhooley, Partner and Head of the Education team at Eversheds LLP. The topic
I am considering today is key points for carrying out investigations.
TOPIC
Investigations need to be carried out in a number of situations relating to an employment
context. These include where employees have raised grievances or complaints including,
but not limited to, allegations that they have been subjected to bullying and harassment.
Investigations will also need to be carried out where there is a concern that an employee has
committed an act of misconduct, where there are issues relating to an employee’s
performance or where an employee is absent due to ill-health.
Investigations could lead to disciplinary action being taken against employees or them being
taken through a capability process. Investigations will also lead to grievances either being
upheld or rejected.
The University may therefore find itself on the receiving end of an employment tribunal claim
as a result of action taken following an investigation.
In deciding whether any claims brought against the University will be successful and
Employment Tribunal will scrutinise the quality of the investigatory process.
Do’s
Do ensure that you refer to the ACAS Code of Practice and relevant internal policies
and procedures before you undertake the investigation. Disciplinary and Grievance
policies will be a good place to start, but you should also take into account any
additional policies that may have a bearing on the fairness of the process; such as
whether any reasonable adjustments need to be made for any individuals involved
in the investigation who may have special requirements due to a disability.
Do consider who is the best person to undertake the investigation. An investigating
officer should be independent and not have a vested interest in the outcome of the
investigation. The investigating officer may need specialist knowledge, particularly if
the grievance or disciplinary matter relates to a technical matter or requires specific
know how. For example, if there is an issue concerning access to IT systems the
investigation should be carried out by someone who understands those systems.
Do exhaust all avenues in the investigation. It would be a mistake for the
investigating officer to only seek information from one party’s perspective. All
relevant information should be obtained, compiled and taken into consideration
when conducting an investigation.
Do ensure that matters under investigation are kept as confidential as possible.
Only the individuals concerned in relation to the grievance or disciplinary matter
should be made aware of the issues. This will include any witnesses who should be
informed that the matters that they are being questioned on should be kept
confidential and should only be discussed with the investigating officer.
Do produce a thorough investigation report which should outline:
1.
The issues under investigation;
2.
What actions were undertaken as part of the investigation i.e. who was
interviewed and why it was considered necessary to interview them and what
documents were considered; and
3.
Findings and recommendations.
Don’ts
Don’t automatically suspend an employee or worker who is at the centre of an
investigation. Even if you have a right to suspend under the employee’s contract of
employment, suspension should only be carried out in certain circumstances, for
example in instances of alleged serious misconduct where there is a potential threat
to the University or its employees or students, or where it is not possible to properly
investigate the allegation if an employee remains at work. It is important that the
employee at the centre of the investigation does not feel pre-judged or that a
decision has been made in advance of any investigation or hearing taking place.
Don’t keep an employee suspended any longer than necessary. Keep the decision
to suspend the employee under constant review and keep the employee updated if
their suspension is to be any longer than originally anticipated.
Don’t assume all evidence that has been obtained can be relied on. In particular,
care should be taken in relation to the use and reliance of evidence gathered as a
result of recording an employee’s activities i.e. surveillance, film or sound
recordings. It may, however, be possible to take into account evidence which has
been given on an anonymous basis. The weight you give to it will depend on the
relevant circumstances.
Don’t underestimate the time and resources needed to carry out a fair investigation.
Before commencing the investigation identify how long it is likely to take, who you
may need to speak to and what documents or other evidence you will need access
to.
Case
As mentioned failures in the investigatory process can give rise to claims before the
employment tribunal if the employee is subsequently dismissed. Alternatively an employee
who believes they have been inappropriately suspended could resign and claim constructive
dismissal arguing suspension amounted to a breach of the implied term of trust and
confidence. However, the case of Gogay v Hertfordshire County Council demonstrated
an alternative avenue of claim. In this case a residential care worker in a children’s home
was suspended whilst the employer investigated issues of sexual abuse. The investigation
subsequently concluded there was no case to answer. Ms Gogay by this time was suffering
with clinical depression brought on by her suspension. She successfully brought a claim for
personal injury on the basis that the employer has breached the implied term of trust and
confidence in suspending her as there were no reasonable and proper grounds for
suspension given the evidence before the employer when making its decision.
OR
As mentioned failures in the investigatory process can give rise to claims before the
employment tribunal if the employee is subsequently dismissed. Alternatively an employee
who believes they have been inappropriately suspended could resign and claim constructive
dismissal arguing suspension amounted to a breach of the implied term of trust and
confidence. This was the case in Camden and Islington Mental Health and Social Care
Trust v Atkinson. In this case Mrs Atkinson was suspended on 20 October following
complaints related to the way she had treated 2 patients. She was not given the opportunity
to be represented at this meeting despite being entitled to representation under the Trust’s
procedure. At a meeting on 31 October, at which she was accompanied by her trade union
representative, suspension was continued even though one of the allegations was no longer
in issue. Mrs Atkinson subsequently resigned and the tribunal upheld her claim for
constructive dismissal. The Trust appealed unsuccessfully to the EAT who concluded that
the Trust had breached the contact by initially suspending her without representation and by
continuing the suspension after one of the allegations had been disposed of.