Carrying out investigations
Toni McAlindin
March 2013
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When is investigation needed?
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There are many employment situations which
require a rigorous and thorough investigation
Caselaw has developed over the years regarding a
“reasonable” investigation
It is a significant factor in cases of unfair
dismissal and in cases of discrimination
particularly allegations of bullying and harassment
However other situations require an employer to
“investigate” ie gather information
For instance
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Cases of misconduct – probably the most obvious areas eg
theft, violence, breach of company policies
Attendance and performance issues
Bullying and harassment – whether or not linked to any
discriminatory reason
Absence due to stress
Grievances raised by an employee
Collective grievances
Following action against the company such as losing a tribunal
Whistleblowing allegations
Etc, etc …………. In other words it is a normal part of
everyday management
The disciplinary investigation
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Whatever the reason for conducting an investigation, several
factors will be common
For instance the rules of natural justice ie everyone has the
right to know the case against them – so it must be properly
investigated to ascertain what that case is
Everyone has a right to answer – this is part of a fair
procedure in general – however an individual may be
interviewed as part of the investigation – at the “fact
finding” rather than “blame giving” stage
There should be no bias
Therefore an individual who is a victim, a witness or likely to
play another part in proceedings should not carry out an
investigation
This is particularly true of misconduct investigations but
less true of investigations into attendance or performance
Discipline continued
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Investigations are key to following a fair procedure
An inadequate investigation might render dismissal unfair
To be fair a dismissal has to be for one of the five potentially
fair reasons ie conduct, capability, redundancy, statutory ban,
some other substantial reason
An employer must then go on to demonstrate that he acted
fairly
An employer is not expected to achieve the criminal standard
of beyond all reasonable doubt but only a reasonable belief
The leading case is British Home Stores v Burchell 1978
where the EAT held that an employer must establish a genuine
belief on reasonable grounds after a “reasonable investigation”
In Polkey v Dayton Services Ltd 1987 the House of Lords
held that any procedural shortfall will make a dismissal unfair
(although compensation might be reduced following the “no
difference rule”)
Failure to follow the ACAS Code on discipline might lead to an
uplift of up to 25% on the compensatory award
Purpose of investigation
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As stated in the ACAS code – to establish the facts
Should be someone at management level – procedures may
dictate who does it – in large organisations there may be
specific trained investigators
Different person to the one conducting the hearing
Employee may want to carry out own investigation
Depends on what is being investigated eg appraisals for
performance, sick notes, contractual terms, other
employees’ discipline, letters, emails, policies, procedures,
speaking to other staff, unions, representatives
Where an employee is suspended it is difficult to collect
evidence – sometimes that is why the individual is suspended
to stop them influencing the investigation or other
employees
Polkey
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The famous case of Polkey – often called the “no
difference” rule ensures that failure to follow a
proper procedure including investigation is almost
guaranteed to make any dismissal unfair
The level of compensation, however, may be
reduced to reflect the fact that a fair procedure
may have led to the same outcome
However why chance it – better to have a fair
procedure including discipline ie there are no
circumstances when failure to investigate can be
excused no matter how flagrant the misconduct
Seriousness
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The more serious the potential consequences the
higher the standard of investigation required
Salford Royal NHS Foundation Trust v Roldan a
nurse was accused of mistreating a patient, based
on the evidence of a colleague. Dismissal for GM
was the end of her career, loss of work permit and
deportation – high standard required
Crawford v Suffolk Mental Health Partnership –
nurse unfairly dismissed following an allegation
that she used improper restraint methods on an
elderly patient. Dismissal unfair – hospital
conducted staged reconstruction without inviting
the claimant or her representative
Range of reasonable responses –
carrying out further investigation
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Stuart v London City Airport – individual worked at City
airport
Went into duty free to buy present
Held in his hands – re-directed to a different till
Called over by colleague over the store boundary and had a
discussion
Dismissed for misappropriation
Did not interview store operatives or other colleague
Did not check CCTV camera
Unusual for court to intervene and require further
investigation but here EAT stated that where there are
serious allegations of dishonesty then failure to carry out
exculpatory investigations was objectively unreasonable
Suspension
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Consider very carefully whether it is required
See recent case of Crawford v Suffolk Mental Health
Partnership NHS Trust – two nurses suspended pending
investigation into mishandling patient with dementia
Six month suspension
Court of Appeal – held sometimes a long suspension may
constitute breach of trust and confidence, can lead to
stigma even if no discipline
Held no real risk of behaviour being repeated if they stayed
at work – astonished that referred to police
Suspension should not be automatic – each case should be
considered on its merits ie risk of repetition, impact on
other staff, fair investigation
Criminal offences
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The ACAS code makes it clear that just because an employee is
charged with or convicted of a criminal offence, this is not
enough in itself for disciplinary action
Consideration needs to be given to what effect the charge or
conviction has on the employee’s suitability to do the job and
their relationship with their employer, work colleagues and
customers (para 30)
In other words it depends on the nature of the offence,
whether it happened at work (often will be gross misconduct) or
outside of work, the nature of the job, the impact on the
workplace eg reputation
Someone charged with fighting – may have no impact on work,
someone charged with sexual offences – may have an impact
depends on the job and other colleagues
It is not for the employer to take a moral view of the conduct
but to look at how it affects the employer and the employer’s
reputation
Criminal offences at work will normally be for “conduct” reasons,
outside it may be “SOSR” eg trust and confidence
Police investigations
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If the police are carrying out a criminal investigation into a matter that
is also part of a disciplinary investigation the employer may be hampered
in gaining sufficient information
This is particularly likely if the incident happened outside of work
See Leach v OFCOM allegations of child sexual abuse whilst on holiday
in Cambodia
Several branches of the police said that he was under investigation
Employer had no way to test the information but feared damage to
reputation and dismissed for breach of trust and confidence
ET – fair dismissal for SOSR, proper hearing, had not just accepted word
of CAIC but investigated as far as it could
EAT held Ofcom entitled to protect its reputation
CA – only question was whether this was SOSR
Aware of potential injustice but only question was had the employer
acted reasonably – injustice not from employer but those falsely accusing
him
Employer would have neither expertise nor resources to independently
verify the allegations
Police investigations contd
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The employee may be advised by his lawyer not to cooperate for
fear of damaging any criminal trial
It may be difficult for an employer to get access to relevant
information to conduct a proper investigation
The employer must carry out his own reasonable investigation as
far as the circumstances allow
It should not rely on the outcome of police investigations as for the
most part these will relate to criminal sanctions with a different
burden of proof and potential penalty
If the police investigation does not result in prosecution the
employer could still conclude that disciplinary action is justified on
the basis of his own investigation because the test is “reasonable
belief” whereas in a criminal case it is “beyond all reasonable doubt”
If the police investigation results in a prosecution an employer will
have to decide what impact that has on his or her decision to
dismiss eg if the employee is in prison, is found guilty of a crime
(this is likely to be gross misconduct)
Group Dismissals
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Sometimes it can be impossible to ascertain who committed an
act of misconduct particularly areas such as theft
It may be clear after investigation that it is one of two or more
but not possible to decide whom
It can be fair to dismiss both or all if
• act justifies dismissal
• employer has made a thorough investigation
• employer reasonably believes more than one person could
have done it
• employer identifies the group who could have done it
• each person was individually capable of doing it
• employer cannot reasonably identify the culprit
Equally an employer may have two conflicting sets of
information and must decide who to believe – if unable to resolve
conflicting accounts – the wrongdoer might be given the benefit
of the doubt
ACAS code of practice on disciplinary
and grievance procedures
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Practical guidance on handling discipline and grievance situations
and recommendations about investigations
It suggests
• Establishing the facts of the case by carrying out
investigations without unreasonable delay
• Sometimes this will be collation of evidence eg performance
or attendance figures, paper evidence etc
• Others will require investigatory meetings with the employee
and/or others eg witnesses
• In misconduct cases different people should carry out the
investigation and disciplinary hearing
• If there is an investigatory meeting, it should not in itself
lead to any disciplinary action
• Any period of suspension should be as brief as possible and
should be kept under review
• Although there is no statutory right for an employee to be
accompanied at this stage, such a right may be granted under
the employer’s policy
Act quickly
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The code emphasises that any investigation must
be carried out without unreasonable delay to
establish facts before memories fade
Relevant factors may include whether the
employee had admitted any of the allegations,
whether key facts were properly investigated at
an early stage (Lim v Royal Wolverhampton
Hospitals NHS Trust), the extent to which
allegations rely on memory as opposed to paper
evidence and whether witnesses still work for the
employer
Problems arise where the police or other external
parties are involved eg Care Commission in a care
Questioning your accuser or
manager
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Everitt v British Telecommunications plc - EAT held employee
was not entitled to question his line manager as to the latter’s
investigation as the employee had admitted the offence
The only purpose would have been to question the manager’s
motivation rather than dispute the adequacy of the investigation or
the truth of the allegations he made against the employee
No hard and fast rule – depends at all the circumstances
For dismissal to be fair employer must establish that it reasonably
believed that the employee committed the act of misconduct – to
do so it must have carried out an investigation that is reasonable in
all the circumstances. Where as here the employee admits the
offence, the need for further investigation is reduced
However he still has a right to make representations on the
allegations
Establishing the facts
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Keep an open mind especially if the issue is a serious one
The nature and extent of the investigation will depend on
the seriousness of the matter
Look at the evidence
The meeting should be confined to establishing the facts not
deciding on a penalty
Know your own policies not just discipline but any other area
you are investigating
Some issues will be regarded as minor by one employer but
less so by another depending on the industry norms
For instance does the policy lay down timescales for carrying
out an investigation, does it mention who and at what level
should carry out an investigation?
Investigatory meeting
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Depending on the circumstances it may be necessary for an
investigating officer to take a statement from an employee
accused of misconduct so as to obtain his or her account of
events
This is more likely where there are doubts about the
evidence eg one person’s word against the other, third
parties giving evidence
As with other areas of discipline it is important to give the
employee notice of any meeting and time to prepare
There may be a need to interview several witnesses
Equally it may become apparent during the investigatory
meeting that other people have to be interviewed
Some may be reluctant witnesses eg other members of staff
particularly if there are issues of bullying
See rules on anonymous witnesses – obviously not ideal but
not uncommon
See also witness statements
Witnesses
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The investigating officer should arrange to meet individually
with any witnesses to the incident or events
He or she should ask the witness to give his or her own
account of events ie not hearsay or second hand information
but what they themselves saw or heard
Statements should be made into witness statements and
checked by the witness for any errors
Employers cannot insist on an employee providing a
statement and may need to address any concerns
It may be possible to anonymise some or all of the
statement ie blanking out parts which identify the witness
or providing only a summary of the statement
If anonymous statements are used the investigating officer
should seek corroborating evidence of make a judgement as
to whether the witness has any motive in lying
It may be necessary to re-interview witnesses during the
whole process as other relevant evidence comes to light
Witness statements
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Hussain v Elonex 1999 IRLR 420
• main question is whether there is a fair and
reasonable investigation
• no universal requirement to show statements
• but could be contractual requirement (avoid
where possible)
• must only disclose statement if it contains the
essence of the case and
• employee otherwise does not know case against
them (rules of natural justice
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Many witness statements may be taken but only a small
amount of the information might be relevant. The
employee has no inalienable right to see this information
only to know the case against him or her.
Anonymous informants
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Guidance in Linford Cash & Carry v Thomson
1989 IRLR 235 ie
• disciplining manager to interview informant
• establish whether there is an ulterior motive
• is the information credible ie could the witness
have seen the act, heard comments etc
• is there any corroborating evidence
• reduce information to written statements
• may be able to give statements with names
deleted or verbally
• refer back to informant if issues arise at
hearing
Anonymous informants
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Ramsey v Walkers Snack Foods Ltd- dismissal for theft of
money in crisp packet – challenged when evidence came from
employees who did not wish to be identified
Informants interviewed by HR manager who prepared
written statement – unsigned – contained no information
which might identify informants
EAT held fair dismissal even though not all guidance in
earlier case of Linfood Cash & Carry Ltd v Thomson were
complied with ie lack of detail – more detail might have
identified witnesses
Managers involved in disciplinary hearing did not interview
witnesses or weigh up their evidence – witnesses did not
want to be interviewed by wider pool of managers
Need to look at reasons for anonymity and whether it
should be extended on the facts of the case
Surveillance evidence
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Time moves on as does technology. Cases are now likely to involve
social media both inside and outside work, secret recordings – (see
recent HMV case where employees uploaded redundancy meetings
to Youtube)
CCTV – covered by Data Protection – invasive
Common to have cameras inside work but rarely covert but may use
covert where crime or serious offence is suspected. Often use to
“spy” on employees is assumed to be abusing sick pay scheme
McGowan v Scottish Water – EAT confirmed that human right
respect for private and family life (Art.8) is triggered by
surveillance of staff. But it is a balance – as long as a
proportionate means of achieving a legitimate aim – eg crime
prevention
In the above case two private investigators watched Mr M
coming and going from home – held proportionate
Important to explore other alternatives first – should have a
policy which allows and tell employees – should be time limited
Documentation
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The investigating officer should collect any statements and
other documentation relevant to the disciplinary issue
These may include expenses claims, absence records,
clocking in cards, video or CCTV evidence
The investigating officer should compile the information and
submit this with his or her recommendations to the person
or persons who will make a decision on whether to proceed to
the disciplinary interview stage
This information should also be provided to the employee
The employee should have the opportunity to see this
information prior to the hearing (subject to what was said
above re anonymous witnesses)
The right to be accompanied
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As an investigation is a gathering of facts, it is generally
understood that there is no right to be accompanied as
there is for the disciplinary procedure itself
However a company’s own procedures may provide for a right
to be accompanied and in some cases a right to be
represented (more involved than accompanied)
Trade unions and representatives believe that individuals
should have a right to be accompanied
Management do not always agree arguing that this stage is a
gathering of facts not an accusation or a disciplinary hearing
However some individuals may feel confused or give rise to
concerns during answers to questions
Five “Ws” – helpful in
investigation
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It may be useful to consider the following when conducting an
investigation particularly into issues of misconduct
WHO - was involved, witnesses
WHEN - incident handled, in work or out
WHAT - happened, different versions, records needed eg job
descriptions, rules
WHERE - did it happen
The fifth is more important in the hearing itself
WHY - incident took place, at that time or place, involving that
particular person
NOTE IMPORTANCE OF DIFFERENT PERSON CONDUCTING
INVESTIGATION THAN HEARING
What to do
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What evidence do you need?
Who do you need to speak to eg what witnesses
See above for witness statements - better to speak to a
person and record
Other things eg CCTV, documentation, policies
Perishable evidence
Can interview employee under investigation and any
witnesses more than once as other information comes to
light
What do you need from each person, putting alternative
versions to witnesses
Remain flexible – have some idea of what questions you want
answered though
Don’t put words into witnesses’ mouths or suggest answers
Ask for information in the witness’s own words
Record and have the person check afterwards that this is
what was said
Case to answer
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The purpose of gathering facts is to decide on whether there is a
case to answer
No disciplinary action should be instigated at an investigatory stage
There should be a clear separation between the two stages
A number of choices need to be made depending on what arises
during the investigation eg anonymous information not backed up by
more – do you continue at all even if you feel it is genuine
Conflicting information – do you give the employee the benefit of
the doubt
Is there enough to move to carrying out covert surveillance
Is more than one person involved and one if not both must be the
culprit
Remember – reasonable belief, on reasonable grounds, after
reasonable investigation (see above for what is a reasonable
investigation)
Performance and attendance
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Although the basic rules are the same, in reality the
immediate line manager will conduct the investigation into
“capability” type discipline
It is still important to ascertain the facts eg level and
frequency of absence, reasons for absence, whether there is
a disability, what the prognosis is, whether any adjustments
need to be made, impact on other staff
With performance management should have robust
performance appraisal systems but these tend to be an
annual evaluation whereas performance management should
be ongoing ie what are the standards expected of the
employee, what is the actual performance and therefore
what is the gap
Discussion should then centre on the reason for the gap and
ways of closing the gap
This should be done before any formal discipline takes place
Grievance investigations
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When an employee raises a grievance it is important that it
too is investigated
Take the grievance seriously ie why does the employee feel
aggrieved
Investigate the facts and the surrounding circumstances –
show the employee that action has been taken to ascertain
the grievance
Look for a solution that will satisfy the employee but not
damage the employer or other employees
Provide feedback but be careful re what is happening to
other employees as a result eg grievance against a manager
Grievance investigations contd
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A grievance may raise issues unknown to the manager who
may not know or have all the facts
There may be allegations about another employee eg bullying
and/or harassment
These will have to be investigated promptly and sensitively –
where the grievance relates to another employee both have
rights at work
This may necessitate talking to witnesses
It should be stressed that any discussion is confidential –
equally the party should not discuss matters with others
Don’t make assumptions
Keep an open mind – it will often be one person’s word
against the other
Disciplinary Interviews
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If the investigation concludes that there is a case to answer
then there should be a proper and separate disciplinary
hearing conducted by a different manager.
The principles are:• Thorough preparation
• Stating the purpose at the start
• Conducting it fairly but firmly
• Listening to all sides and views
• Stating the outcome clearly and sympathetically
Sometimes it may be worth having a script – this could rarely
be followed verbatim but it helps concentrate the mind on
the essentials
Often emotions get in the way ie anger, tears, violence
Accurate documentation is VITAL
Summary
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Act quickly
Inform the employee
Decide who to interview
Conclude in a reasonable time
Establish the facts, who, where, when, how and maybe why although
this may be part of the disciplinary hearing
Confidentiality
Clarify
Who should carry out the investigation
Documentation, policies, procedures, previous cases, recording
Suspension
Right to be accompanied
Preparation of questions
Dos and dont’s
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Allow witnesses to refer to documentation to refresh
memory
Pause if the witness needs a break
Record all pertinent facts
Keep calm and focused
Remember all parties need to keep things confidential
Don’t be afraid to challenge the witness
Don’t substitute your own view
Don’t encourage witnesses to offer opinions and don’t offer
your own
Don’t assume or draw hasty conclusions
Don’t disclose confidential ifnormation