Carrying out disciplinary investigation is one of the least desirable aspects of employing staff, but often they’re necessary. Perhaps due to a particular incident or allegation against an employee, there is no choice but to investigate what happened.
A disciplinary investigation must be carried out to ensure the correct conclusion is reached and allow the necessary disciplinary action to be taken. Before you carry out a disciplinary investigation, however, you will need to determine if one is required.
In addition, the correct disciplinary process must be followed. This is to ensure that if the employee brings a future claim at the Employment Tribunal, you can prove you have conducted a fair and thorough inquiry.
What is a disciplinary investigation?
A disciplinary investigation is used for gathering the evidence needed to decide on a complaint made against an employee. The process should be documented in an HR manual and followed fairly and transparently. Disciplinary investigations may be necessary where there are accusations against an employee or employees concerning:
- Poor conduct
- Poor work performance
- Workplace bullying
- Dangerous behaviour which may harm the health and well-being of other members of staff
- Theft
- Inappropriate behaviour towards other members of staff and/or customers
- Breach of employment contract
The aims of a disciplinary investigation are to:
- Determine if disciplinary action is needed
- Treat those involved fairly
- Gather enough information from the parties involved
- Decide on what action to take
Who is responsible for conducting a disciplinary investigation?
There is no set rule for who should conduct a disciplinary investigation. However, the following factors should be considered:
1. It’s best practice to ensure that the person investigating the incident will not conduct the disciplinary hearing should one be required.
2. Avoid choosing someone closely connected to the subject of the investigation, as it’s essential to demonstrate fairness.
3. If your business doesn’t have someone internal who is trained in disciplinary investigations and/or the matter being investigated is complex, it may be prudent to employ someone from outside the organisation to conduct the inquiry.
How do I carry out a disciplinary investigation?
Where your business already has a policy on disciplinary investigations, this should be followed carefully. You must always remain impartial and handle the matter discretely. A disciplinary investigation may include the following:
1. Gathering any physical evidence, including photos, emails, video recordings (CCTV), witness statements, correspondence and attendance records. You can even use more modern technology such as logs from a time tracking tool.
2. Holding an investigatory meeting with the employee and any witnesses to gather more information (respect the right for the employee to be accompanied by a work colleague or trade union representative).
You must consider the physical and mental wellbeing of the staff member and take appropriate records of the proceedings (e.g. a recording of the interviews). You must also comply with GDPR and data protection principles when carrying out the investigation.
Once you have completed the above steps, you must draft an investigation report, summarising your findings and recommending whether formal, informal or no further action should be taken.
How long should a disciplinary investigation take?
The Acas code of practice states that although an investigation should be conducted briskly, time must be allowed to ensure a thorough and fair process. If your business has established timescales for investigations, these should be communicated to the employee, and if an extension is required, they should be notified, and the reason for the extension is set out in the investigation report.
What happens after a disciplinary investigation?
Once the investigation is completed, the officer must write an investigation report. They may also make recommendations for the next steps in the form of the following:
- Formal action, for example, formal warning or disciplinary procedure
- Informal action, for example, training or mediation
- No further action is to be taken
What should be included in an employee investigation report?
If you’re wondering how to write an investigation report for a disciplinary,
Acas provides a detailed template for investigation reports, and the information required includes the:
- Issues required to be reviewed and verified
- What evidence was presented
- Witnesses who were interviewed and their statements.
- Who completed the investigative meetings
- Any further considerations
The Acas template provides a framework; however, complex investigations may require significantly more detail.
Get legal assistance from LawBite
Considering the advice above, you can see that carrying out a disciplinary investigation with care, transparency, and fairness is essential. Doing so will allow you to resolve the matter quickly and make a decision which you can show was correctly taken at a later date. This will protect your business from accusations of wrongdoing, such as wrongful, unfair, or constructive dismissal.
LawBite's employment lawyers can give you the legal advice you need if you are required to conduct a disciplinary investigation. Our expert solicitors can also review and draft new employment contracts and advise you on any commercial or corporate legal issues you might have.
To speak to one of our expert employment lawyers, book a free 15 minute consultation or call on 020 3808 8314.
