Whenever there is a possible workplace grievance or disciplinary issue, employers should conduct a fair investigation to establish the facts before acting.
Remember, an investigation is not part of the disciplinary process. This should be made clear to any employees involved from the outset. It will only become a disciplinary issue once the investigation has been carried out and a conclusion reached as to whether any formal action should be taken.
Who should conduct the investigation?
Wherever possible, the investigation should be carried out by someone who will not ultimately be involved in any disciplinary action. They are known as the investigating officer.
The investigating officer should not assume guilt or innocence, and should interview the employee first to find out their version of events. He or she may admit to committing the act in question, may deny it, or may give an explanation.
Legally, the employee does not have the right to be accompanied by a work colleague or trade union representative at an investigation interview. However, employers may wish to consider a request for representation, depending on the circumstances.
Remember that the investigating officer is only there to gather the facts of the case. They must ensure that the interview does not become a disciplinary hearing.
How should an investigation be prepared?
Creating a plan should help the investigating officer prepare and give them a structure to follow from start to finish. They can then focus on what facts need to be established, the evidence that needs collecting and how to complete the investigation within a realistic timeframe.
For example, under the ‘sources of evidence’ section, the investigating officer can list where they’ll find the facts they need. This can include CCTV, emails, performance stats, or witnesses. The names of the witnesses would then be included, along with when and where they will be interviewed.
An employee under investigation should be informed in writing of the allegations against them and that an investigation is being carried out. They should be advised who to speak to if they have any questions, which is usually the investigator, their manager, or HR.
Any witness or other employee to be interviewed should be given written notice. They need to be informed of:
The date, time and place of the meeting
The name of the investigator and what their role is
The reason for the meeting
An explanation that the meeting is only to establish the facts of the matter and is not a disciplinary meeting
A request to keep the reason for the meeting, and any discussions that take place, confidential
Whether there is a right to be accompanied to the meeting
That it may be a disciplinary issue if they unreasonably refuse or fail to attend the investigation meeting.
The investigating officer should also consider which policies and procedures they need to follow that are relevant to the matter. This is important for deciding whether there is a case to answer if any of the policies have been breached.
During the course of the investigation other evidence may come to light. However, the investigating officer must remember to only present evidence that is relevant to the matter at hand.
An investigation meeting is an opportunity to interview someone involved in, or has information about the matter under investigation. Remember, the investigation meeting is not the same as a disciplinary meeting. If disciplinary action is required then a separate meeting should be arranged that follows that procedure.
During an investigatory interview, the investigating officer should:
Ensure that a quiet private space is available for carrying out interviews.
Explain the purpose of the interview – an investigation is not part of the disciplinary process.
Notify the employee of the alleged incident.
Explain how the interview will be conducted.
Go through pre-prepared questions in order to establish the facts.
Ask any supplementary questions to follow up issues raised.
If new information is submitted, consider adjourning the interview in order to seek clarification.
Explain that the meeting may be re-convened if new information comes to light after the initial investigatory interview.
Give the employee an opportunity to state their case and provide any information pertinent to the investigation.
Take clear and precise notes. It’s usually advisable to have a note taker present.
The investigating officer should then interview witnesses who may be involved or aware of what had happened. Again, clear and precise notes are required.
Preparing a report
After each interview, the investigating officer should prepare notes that reflect the discussions that took place during the meeting and ask the employee to sign them as an accurate record of events (unless the witnesses have agreed to their names being revealed, these should be removed).
If the investigation subsequently results in a disciplinary process, the employee will need to be given access to all evidence obtained during the investigation, so ensure that everyone is happy for the information they have provided to be used.. They need to be aware that anonymity cannot be guaranteed unless there is a genuine fear of reprisal.
Once the investigation is completed, the investigating officer should prepare a report summarising the findings.
The employee will be informed of the outcome by their line manager. Either he or she will be told that no further action will be taken, or the employee should be invited to attend a disciplinary hearing.