**Wrigleys’ Essential Employment Guide** The Disciplinary Process

How thorough should an investigation be?

In this series of articles, Wrigleys’ employment team explores the disciplinary process, offering guidance on key steps for employers.

In this article, we look at the steps an employer should take to ensure the initial investigation of a disciplinary matter is fair.

If a disciplinary issue arises an employer cannot proceed straight to disciplinary action. Employers must take reasonable steps to identify relevant facts and evidence that will allow them to decide whether to proceed to a formal disciplinary hearing and, if so, that will allow the hearing manager to determine whether the allegations are upheld or not.

For this reason, conducting a thorough investigation is key to an employer being able to demonstrate that they acted fairly in coming to a disciplinary decision, which will be important if the matter is ever subject to tribunal proceedings.

Striking the right balance can be difficult for employers – just how thorough is thorough enough?

1. Preparation and setting up the investigation

The investigator must ensure they are clear about the allegation(s) they are tasked to investigate. They should also consider in advance what type of information will be needed to allow them to decide if there is a case to answer and create an investigation plan to structure the investigation process.

Investigators should not set out to ‘prove’ or ‘disprove’ a specific allegation, but rather seek out and gather the facts and evidence which will allow them to weigh up whether there is a specific case to answer. Remember, it is the disciplinary hearing manager(s) who will ultimately decide if the allegations are upheld or not.

Where it is clear that the misconduct complained of could result in serious disciplinary consequences, such as dismissal, the investigator should prepare from an early stage to go into detail on the facts and events surrounding the alleged misconduct. The more serious the potential consequences, the more thorough the investigation needs to be (more on this below).

2. Gathering evidence

i) Witnesses

Most disciplinary investigations will involve at least one meeting with the employee accused of misconduct but may include meetings with witnesses. Investigation meetings should record the date, place and time of the interview, those present and an accurate record of the key points that arose. This will usually be better served by either having a note-taker present at the meeting or an employer might consider taking a recording of the meeting, providing the parties present are happy with this. Witnesses should be asked to sign an agreed copy of the minutes / transcript of the interview, or a written statement setting out their evidence.

The investigator should carefully consider who to call as a witness. For example, asking every employee in the team risks wasting time and spreading rumours about the employee that can cause problems for both the employer and employee. For this reason, witnesses should be carefully selected for their relevance to the facts which need to be established.

Investigators should also stick to relevant topics and questions with a witness and draw upon any other evidence gathered prior to the meeting. An investigator should always consider following up on any leads or claims made by a witness and can invite witnesses back for further meetings to test any evidence arising during the investigation. Witnesses referred to in the investigation meeting with the employee should usually be interviewed, unless it is reasonable to conclude that their evidence would not be relevant.

ii) Other evidence

An investigator should gather all the relevant evidence they can, including witness evidence, documentary evidence, digital evidence and physical evidence in the time available. Thought should be given to the type of evidence likely to be needed, whether it is available and how it can be accessed. What type of evidence will be collated will depend on the nature of the allegation. For example, some misconduct will only be apparent after reviewing documentary evidence (e.g. timesheet fraud or accounting misconduct) whereas other forms of misconduct may rely more heavily on witness evidence (harassment, bullying or violence).

It is also important to make sure that an investigator has taken steps to gather evidence that would undermine the allegations and clear the employee of wrongdoing, where this exists.

iii) Thoroughness

A good investigator should seek to establish facts with multiple sources of evidence. Multiple sources of evidence of different types which support one another can provide context and strengthen the case. For example, witness evidence can be biased and unreliable, and individual written documents may be partial or misleading, but witness evidence and written documentation which are consistent with each other are likely to be more reliable in establishing facts.

Precisely how thorough an investigator should be will in part depend on the seriousness of the misconduct. For example, if misconduct were upheld, will it result in dismissal or, as in some cases, disbarment from a professional body or regulated activity (e.g. nurses, carers or teachers) putting their future career at risk. Where the potential consequences are this serious, investigators should make extra efforts to gather all relevant evidence they can.

3. Making findings of fact

An investigator should go in search of evidence that shows the employee did not commit the suspected allegations. For this reason, it is common that investigators will find contradictory evidence. Where possible, an investigation report should make findings of facts on the balance of probabilities. This means drawing conclusions about where the weight of the evidence points and, if possible, determine which versions of events or pieces of evidence are preferred and on what basis. Where there is contradictory witness evidence, this will often mean taking into account evidence which supports or undermines a witness’ credibility.

It is not for the investigator to reach conclusions about culpability or appropriate sanctions, and so the investigator should not give an opinion or view about this.

4. Is there a case to answer?

Once all evidence has been collected, an investigator should review and weigh the evidence and consider whether the facts established by the investigation suggest there is a case to answer.

An investigation report should be put together to summarise the evidence collected, highlight key evidence and set out the specific misconduct allegations the evidence points towards before providing a recommendation of whether or not to put the allegations to the employee in a disciplinary hearing.

The result of a good disciplinary investigation should be an investigation report that clearly sets out:
• Whether there are any disciplinary allegations to answer
• What those allegations are
• What the evidence for and against those allegations is, with an indication of the key evidence supporting and (if any) undermining the allegation is
• Where the evidence was found or gathered from

This will assist the hearing manager to identify early where the key matters of a disciplinary hearing will be and thus help them to prepare a fair hearing and, ultimately, come to a fair outcome.

For further information, please refer to Acas guidance: Conducting Workplace Investigations.

If you would like further information on how to carry out a thorough investigation, it is always a good idea to speak to a professional HR adviser or employment law specialist before carrying out your investigation.