Investigations & Disciplinary Hearings

Added On: 3rd November 2016

Investigations & Disciplinary Hearings

I have been involved in a number of investigations and disciplinary issues recently where it has been clear that managers are not always aware of the procedure to be followed in order to ensure that their process is seen as fair and compliant with the ACAS Code. In many ways this is not surprising since, thankfully, most managers don’t need to get involved in grievance or disciplinary action very often.

The following guidance outlines the process to be followed to ensure any process is thorough and fair.

Every allegation of misconduct should be properly and impartially investigated in order to establish all the facts relevant to the case. This will be particularly important in cases of alleged or suspected gross misconduct. No disciplinary action should be taken prior to an investigation being completed.

An investigation may involve interviewing other employees, customers or third parties or reviewing documentation. Any allegations made against an employee must be kept confidential and communicated only to those who have a role in the investigation.

As part of the investigation, the employee who is accused or suspected of misconduct may also have to be interviewed. The purpose of an investigatory interview will be to establish facts only, and not to judge the employee or make any decision about what action to take. It is essential to ensure that no disciplinary action flows directly from an investigatory meeting.

Once the investigating manager has completed their investigation they should prepare a report which includes:

  • Background – why the investigation arose
  • Format – e.g. what the investigation involved – e.g. who was interviewed, what documentation was reviewed
  • Key findings
  • Conclusions
  • Recommendation/Decision

It is also important that the person conducting the investigation is not the same manager who conducts any subsequent disciplinary proceedings. This may be difficult in smaller organisations. But wherever possible, the two stages (investigation and disciplinary proceedings) should be separate and handled by different people – this sometimes means that smaller organisations bring in external independent advisors to assist.

Where an investigation concludes that one or more disciplinary breaches have occurred and therefore a hearing is required, the first step is to write to the employee setting out the allegation(s), and asking them to attend a disciplinary hearing. The hearing should be at an appropriate time and place – which will generally mean the place where the employee usually works, during the time that the employee is usually at work. The letter should also advise the employee that they have a right to be accompanied by a work colleague or trade union official.

The employee should receive the letter in enough time to allow them to prepare for the meeting. This should be at least a day in advance, but it should not be too long in advance because that could lead to the employee being distressed for a long period of time. The employee needs to have time to think about whether they want someone to accompany them to the meeting. If they do, then they will need time to brief the colleague/representative about the situation.

The employee needs to be given any relevant documents on which the allegations are based – this will include the investigation report and any supporting documents. This allows the employee an opportunity to review the evidence and to prepare a challenge, if appropriate.

The manager leading the disciplinary hearing can be accompanied by an appropriate person.

Disciplinary hearings are not an everyday event for most employees and therefore it is important to open the meeting with a few practicalities. The manager chairing the meeting should introduce all the attendees and clarify their role in the meeting, and should then go on to express the purpose of the hearing i.e. to determine what, if any, disciplinary action is required. Although the allegations have been set in writing already, it is useful to restate them.

The investigating manager should then be asked to present the findings of their investigation, along with any supporting evidence. The employee should then be given the opportunity to respond. The manager chairing the hearing should then ask any questions of clarification from either, or both, the investigating manager and the employee. When all present at the meeting are sure that all points have been considered the manager should adjourn the meeting.

If sometime new comes up during the hearing it might be necessary to have an adjournment to investigate the matter further. Alternatively, if the chair of the hearing believes they have all the information they need, an adjournment should be called to enable them to reach a decision on what sanction, if any to impose.

The manager should return to the meeting, to give their decision and the reasons for it. If a disciplinary warning is issued it must be confirmed in writing.