What Is a Disciplinary Investigation?
Conducting fair and impartial investigations, alongside proper processes, is important. This becomes even more so should the outcome result in a tribunal.
A disciplinary investigation is a formal process when you need to address workplace misconduct or performance. It’s a process where you gather evidence, speak to people involved, and work out whether there’s a case to answer.
Breach of company policy or inappropriate behaviour might need a disciplinary investigation. There might be concerns where capability isn’t the issue. Or issues such as fraud, theft or misuse of company property. An investigation might start if a manager has seen inappropriate behaviour.
But it’s an opportunity to investigate the allegations. You can gather evidence, and draw conclusions. You can then decide whether formal action is necessary. It is not about proving guilt, but about establishing facts.
Establish facts on the balance of probabilities. That is that the misconduct is more likely than not to have happened . Then your organisation can decide on what action to take.
For the employees, an investigation should set out a clear process and expectations. It provides an opportunity for them to share their version of events. For employers, it provides a structured way of gathering facts for the next step in the procedure.
Using a third party for your disciplinary investigations creates compliant workplaces. Thorough and impartial investigations show that you’re serious about employee concerns. And that decisions use evidence and established facts.
Investigations
Why Are Disciplinary Investigations Important
Ensuring Procedural Fairness
During a disciplinary investigation, the evidence must be impartial and without bias. This is not only from a workplace perspective but also from a legal one.
An employee under investigation should not be pre-judged. And in the same way you should hear a complainant without prejudice. ACAS guidance is clear. Employers must act reasonably and with consistency when dealing with allegations. Appointing an independent investigator shows fairness and consistency. This way you reduce the risk of bias and show employees that decisions are not predetermined. It can be critical for trust and reducing the chances of an escalation further down the line.
Protecting Business Reputation
Reputation is important to every organisation. So, when you mishandle misconduct allegations, it damages confidence in the process. It affects your customers and external stakeholders too. In severe cases your reputation will suffer public scrutiny.
ACAS and Legal Compliance
You need to handle investigations in line with the ACAS Code of Practice on Disciplinary and Grievance Procedures. The code itself is not law. But employment tribunals will use it as the benchmark. A court can increase the award by 25% if it finds proper procedure wasn’t followed.
You should therefore conduct investigations in depth, with consistency and without bias. Conducting a disciplinary investigation on these principles protects your business in legal challenges. You show your commitment to transparency and fairness.
When Should You Start a Disciplinary Investigation?
Types of Misconduct
Not every mistake requires a full investigation. If a chat can remedy the situation, it’s always best to explore alternative options. But some complaints are serious enough that you need a disciplinary investigation. These might include:
– Persistent absence
– Breaches of company policy or health and safety rules
– Misuse of company property or data
– Bullying, harassment, or discrimination
– Serious insubordination
– Theft, fraud, or violence in the workplace
Misconduct varies in seriousness. And a misconduct investigation decides if the allegation is valid. It gives senior managers the background when deciding how to handle the next steps.
How to Determine if Disciplinary Investigations Are Necessary
You might carry out an investigation when there could be disciplinary action. To start, ask the following questions:
– Is the alleged behaviour in breach of company policy?
– Could it amount to gross misconduct?
– Has the issue arisen before?
If the answer to any of these is yes, then an investigation is usually appropriate. You might also need to start an investigation if there is evidence that needs securing. For example CCTV footage, social media or email evidence. We always tell employers to act with speed.
Employee misconduct investigations are stressful for those involved. Delays not only make it harder to gather accurate evidence. They can be unfair to the employees, who are uncertain about the next steps.
Process
Step-by-Step Disciplinary Investigation Process
Appointing a Third-Party Investigator
Defining the Scope and Objectives
Gathering and Securing Evidence
Interviewing Involved Parties
Documenting Findings and Writing the Investigation Report
Should You Suspend an Employee?
When It’s Appropriate
Don’t use suspension as a disciplinary action. It’s an impartial step to allow the investigation to proceed with fairness. ACAS makes it clear that you should only use suspension where necessary. There might be risk of an employee interfering with evidence or influencing witnesses. Or if the allegations are serious enough that staying at work could be disruptive or unsafe.
It’s important to explore alternatives to suspension. For example can those involved move teams or could they work from home? Come from a perspective that every grievance situation is unique. If you’re unsure about the validity of a suspension, getting legal advice is the best course of action.
Paid vs Unpaid
In all cases, suspension should be on full pay. Unpaid suspension could be a breach of contract, unless the employment contract allows it. Paying an employee during suspension also reinforces that the process is impartial. It avoids claims of unfair treatment or that it was a de facto punishment.
Even if a contract includes unpaid suspension, it could still be a breach of contract. Enforcing it could raise more formal grievances.
The report
Writing the Investigation Report
What to Include
A report should provide a clear record of the process. And present the evidence so that the employer can make a decision on next steps. This includes:
– A summary of the allegation
– The steps taken during the investigation
– The evidence, including documents and witness statements
– Whether there is a case to answer
Avoiding Bias and Opinion
It’s important that you don’t include personal opinions or judgements. The report should be be balanced and based on facts. It highlights both evidence that supports and challenges the allegation. Bias or speculation can undermine the credibility of the investigation. This can lead to challenges at a later stage.
Disciplinary Investigations Example Structure/Template
A typical investigations report would look like this:
– Introduction including background and scope
– The allegation
– Your method and how you collected the evidence
– Your findings summarised and referenced
– A conclusion on whether there’s a case to answer or not – but not recommendations or sanctions
The report
What Happens After the Investigation?
Communicating Outcomes
Communicate the decision to the employee in writing. Explain if the case is moving to a formal hearing, being resolved informally or being closed. Be clear in the outcome or next steps. This helps to manage the employee’s expectations and reduces the risk of later disputes.
Hearing or No Further Action
If there is proof of misconduct the next step might be a formal disciplinary hearing. Depending on how severe the misconduct, informal or alternative resolution could be appropriate. This might be coaching or mediation. If there is no proof or insufficient proof of misconduct, there might be no further action
Retention & Follow-Up
Keep any records and the outcomes secure, in line with data protection laws. Also consider follow-up actions, such as reviewing internal policies or providing training. A disciplinary procedure might uncover gaps in knowledge or processes. It’s a chance to learn lessons and strengthen your workplace culture.
Legal & Best Practice Considerations
Align Your Disciplinary Investigation with ACAS Guidelines
Impartial, Timely, Transparent
Confidentiality & Data Protection
Some Common Mistakes to Avoid
Investigators should not recommend sanctions. They should only present facts based on the evidence gathered
- Delays
Waiting too long to start an investigation risks lost evidence. It can mean unnecessary stress for employees
- Bias
Allowing personal views or employee relationships to influence the process undermines fairness
- Poor record-keeping
Improper documenting of interviews and evidence can weaken the investigation’s credibility
- Overstepping boundaries
Investigators should not recommend sanctions. They should only present facts based on the evidence gathered
- Misuse of suspension
Suspending as a punishment instead of a step to support the process. This can damage trust and create more formal grievances
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