Investigating Employee Misconduct

Investigating employee misconduct: how to get it right

Being dismissed for misconduct can have a devastating impact on an employee’s future job opportunities. Before fairly dismissing someone for misconduct, employers must be able to show that they reasonably believe that the employee is guilty of misconduct.

‘Ensuring that employers conduct a fair investigation is key to a fair process and for establishing that it was reasonable to believe that the employee was guilty of the allegations levied against them,’ says Annalie King, a Partner and Head of Employment in the employment team with Kerseys Solicitors LLP.  She explains to employers how to get investigations right.

Step 1:  Check your procedures and follow them

Employers should have a disciplinary procedure that complies with the Acas Code of Practice on disciplinary and grievance procedures. If the dismissal results in an employment tribunal claim, the tribunal will assess whether you followed the code. If not, the dismissal is likely to be unfair and damages awarded to the individual may be increased by up to 25 per cent. If your procedure goes beyond the requirements of the code or the law, for example by allowing employees to be accompanied at investigation meetings, the tribunal will most likely expect you to comply with your procedure. Therefore, ensuring that you have compliant up to date policies is important.

Who should conduct the investigation?

You should consider who is best suited to conduct the investigation.  The investigator should be impartial, so this would usually rule out anyone who is likely to be a key witness in the investigation or who could be embroiled in the allegations. Preferably, different individuals should carry out the investigation and the disciplinary hearing. Bear in mind that you also need to keep a more senior individual out of the process so that they can remain ‘untainted’ to hear any appeal. This can be tricky in smaller organisations, particularly if the employee is in a senior role. We can advise you on how to deal with this and whether it would be worth bringing in an external investigator.

What is a reasonable investigation?

A tribunal will expect you to carry out a reasonable investigation promptly. What is reasonable will depend on the circumstances. A misconduct dismissal can end a career or result in an employee losing their right to work in the UK. The more serious the allegation and the more serious the consequences for the employee, the more thorough the investigation should be.

The investigator must keep an open mind; they are not building a case against an employee, rather they are seeking to establish the facts. This means exploring issues that are in the employee’s favour, not just those that support the allegations. A difficult balancing act for an investigator is making sure that the investigation is thorough enough but does not drag on nor involve investigating irrelevant information that will further delay the investigation. In some cases, it may be sufficient for the investigator to just gather evidence without speaking to any witnesses. In most cases, it will be necessary to meet with the employee.

As a rule of thumb, if the employee is ‘caught red handed’, minimal investigation may be all that is required.  However, even if an employee admits the misconduct, it may still be necessary and appropriate to investigate to ensure that a fair process is followed. For example, an investigation may be needed if it is suggested that the employee’s line manager condoned their behaviour, or the employee is vulnerable.

Who should the investigator speak to?

If there were possible witnesses to the alleged misconduct, the investigator should consider speaking to them, including any suggested by the employee. The investigator may need to speak to individuals outside the organisation. Uncomfortable as this may be, this could involve speaking to clients, customers or suppliers. Should you find yourself in this situation, we are happy to advise you on how to do this and protect confidentiality.

Health issues

Employees may point out that their behaviour was due to a health condition or a side-effect of medication, for example aggressive or erratic behaviour. Even if this seems implausible to the investigator, it should be investigated usually by referring the employee to an occupational health specialist. If not, the tribunal may find that the investigation was not thorough enough, and the dismissal was unfair. The employee could also have a successful disability discrimination claim.

Investigation report

It is good practice to produce an investigation report for the disciplining manager to consider. The report should reach conclusions on what facts have been established and which have not with supporting evidence to be considered as part of the disciplinary hearing. The investigator should recommend if the allegations of misconduct against the employee should be proceed to a disciplinary hearing or not. It is important to keep distinct the role of the investigator and the disciplining manager. The investigating officer should not recommend what sanctions should be considered or imposed.

How can we help?

There are no hard and fast rules on getting an investigation right. Given the importance of an investigation, we recommend getting in touch. We can advise you on the process, planning an investigation, the scope of the investigation and drawing up a report to minimise the risk of a successful claim for unfair dismissal.

For further information, please contact Annalie King in the employment team in Ipswich 01473 213311 or Colchester 01206 584584 or email [email protected], alternatively Kerseys are only a click away visit our website and click “Call Me Back” and a member of our employment team will be happy to contact you at a time that is convenient to you.