Discipline and Grievance

by Kate Russell

Investigations

Before a disciplinary interview, the necessary groundwork must be completed.

If you know (or think you know) that there is a disciplinary problem, whether it is a misconduct or poor performance matter, you must carry out an investigation to collect, collate and review the relevant facts.

The investigation is not part of the formal disciplinary process. Ideally, the investigation should be carried out by someone other than the person likely to chair any disciplinary hearing, although this is not always possible, especially in small firms. It’s not a legal requirement to do so but it is so widely accepted as a rule and expected by the employment tribunals that it might as well be one.

What is an investigation?

The ACAS Code states that employers must carry out necessary investigations into potential disciplinary matters without unreasonable delay in order to establish the facts of the case.

An investigation is a fact-finding exercise. The purpose is to find out, on a balance of probabilities, whether there is a case to answer; it is not to make a judgment about an employee’s guilt. The investigating officer’s role is simply to determine whether on the evidence there is enough of a concern for the matter to be explored formally through the discipline process. It will be for the disciplining officer to decide whether the evidence collected by the investigating officer establishes a breach of performance or conduct and whether there should be any sort of sanction.

It’s important to approach investigations holistically. It is not the aim of the investigation to get enough evidence to escalate matters to a formal disciplinary hearing come Hell and high water. Rather it is about approaching the data collection in the round, collecting all the facts.

As part of this you are expected to consider any mitigation, that is, any factors that may go towards explaining or reducing the severity of what has happened. An example of mitigation at the investigation stage might be cooperation with the investigation or something, such as family worries or ill health, which has caused the employee to act out of character.

Collect data as soon as practicable before the evidence is lost or memories fade. Include anything the employee wishes to say. If, in serious cases, there are witnesses, take statements from them at the earliest opportunity. Make sure the statements are written, dated and signed. Everyone should be clear precisely what the complaint is.

Approach every investigation with an open mind; don’t assume guilt or innocence. Think about the data you need to collect. Consider how you might check the rigour of your work. Build in a process to ensure that you reach an objective and evidenced conclusion.

It may be appropriate to suspend the employee on full pay, but this is best carried out as a precautionary measure and it should be made clear that it is not a disciplinary sanction. See the suspension section for more information.

Investigation checklist

Companions

Your procedure may allow it in which case you must abide by it, but there is no legal right to be accompanied at an investigation meeting.

Example

S worked as a guard for SWT and was the subject of a grievance by another employee who alleged that he was spreading rumours of a relationship between her and another employee. S was suspended and later called to an investigation meeting to discuss the grievance. S insisted that he would not attend unless he was allowed representation. The employer told S that as the meeting was only intended to be an investigatory interview – not a disciplinary hearing – the entitlement to a companion did not arise.

S complained to the tribunal, arguing that although not convened as a disciplinary hearing, the meeting nevertheless fell within the definition of a ‘disciplinary hearing’, given his previous disciplinary record (which included receipt of a final warning).

The court disagreed and said that they were satisfied that the ‘investigatory interview’ had begun, and had always remained, a factual inquiry. It was irrelevant that the interview may have led to formal disciplinary proceedings at a later stage. Accordingly, S’s appeal was dismissed.

Interviewing witnesses

You will usually have to interview the employee who has allegedly breached the standards to get his explanation. You may also have to interview other witnesses.

Take the statements as soon as possible after the events, while the facts are still clear in the minds of witnesses. Include only information on what the witness directly saw, experienced or heard: for example, ‘I saw Jane running away’. Exclude hearsay evidence, such as ‘John told me that he saw Jane running away’.

Ask the witness to name or describe any other persons who were present and might have witnessed the incident(s). Ask the witness to describe what happened, but do not include the witnesses’ opinion on how persons involved in the event were thinking or feeling (for example, ‘x was standing by the door and talking very quickly’ is OK, but not ‘x was very nervous and seemed anxious to get away’).

When interviewing witnesses, identify as precisely as you can what needs to be established from each interviewee and prepare accordingly. Prepare some open questions to help get things started, but don’t treat the questions as a script.

Checklist for taking a witness statement

Anonymous Witnesses

In an ideal world, witnesses will give you a statement and be happy to put their name to it. Sometimes, employees are reluctant to provide a witness statement as part of an investigation into a colleague’s conduct. You can’t insist on an employee providing a statement, but do speak to him to see what you can do to address his concerns. If necessary, you could agree that the statement will be anonymised as far as possible.

An example of this was Ramsey and others v Walkers Snack Foods [2004] where there were real concern about intimidation and reprisals.

Example

Walkers Snack Foods had a crisp factory in Peterlee. The factory was situated in a close-knit community and had a history of poor industrial relations. Employees who cooperated with the management had suffered intimidation.

In August 2001, Walkers ran a promotion in which £5 or £20 were added into one in ten packets by a security firm working on site. Employees were told that the theft of the sachets would be regarded as gross misconduct resulting in summary dismissal.

In September, several employees alleged that thefts of the sachets containing the money were taking place. Because of the difficulty in the past with gaining shop floor cooperation, the company allowed anonymous deposits of information via a telephone hotline. A number of employees gave evidence and they all requested anonymity.

The HR manager drafted a number of anonymous witness statements. She asked questions to verify the evidence. The disciplining officer did not interview the witnesses and the company did not provide the witness statement to Mr Ramsey and his co-accused before the hearings because of the risk of identification. At the hearing, Mr Ramsey and his colleagues were shown copies of the statements and allowed to discuss them with their representatives.

After the hearing, the HR Manager obtained replies from the witnesses to questions asked by the accused. Mr Ramsey and his colleagues were dismissed and complained to an employment tribunal. The tribunal took the view that in the light of the genuine fear of reprisals the procedure was not unfair.

Guidelines for anonymous witnesses were set out by the EAT in Linford Cash and Carry Ltd v Thomson 1989.

  • Informants’ statements should be reduced to writing.
  • In taking statements, it is important to note the date, time and place of each observation or incident, the informant’s opportunity to observe clearly and accurately, circumstantial evidence (such as knowledge of a system), the reason for the informer’s presence or any memorable small details; and whether the informant had any reason to fabricate evidence.
  • Further investigation should take place, it being desirable to acquire supporting evidence.
  • Tactful enquiries into the character and background of the informant would be advisable.
  • If the disciplinary process is to continue, the responsible member of management should personally interview the informant and decide what weight is to be given to his evidence.
  • The informant’s written statement, anonymised if necessary, should be made available to the employee and his companion.
  • If the employee raises an issue at the disciplinary hearing, it may be necessary for the disciplining officer to adjourn to further question the witness.

Admissions of guilt

Although in a few rare cases an admission will negate the need for an investigation, it’s always good practice to investigate as thoroughly as possible to gain the best possible understanding.

Example

Nena Okoro was employed as an assistant catering manager, with 17 years of unblemished service. When the unit at which she worked was presented with an iPod Nano as a corporate gift, Miss Okoro asked her line manager, Mr Cannon, if she could take it home. He refused, but Ms Okoro took it anyway.

Mr Cannon discovered that the iPod was missing and asked about it, but Miss Okoro would only say that she knew where it was and that she knew who had taken it. Two weeks later, she admitted that she had taken the gift as a joke and returned it unopened.

In light of Miss Okoro’s admission, her employer, Compass Group, did not investigate and proceeded to a disciplinary hearing. Miss Okoro was dismissed for gross misconduct because she had removed company property and Compass Group considered this theft. An employment tribunal decided that Miss Okoro’s dismissal was unfair.

The law requires that employers carry out ‘as much investigation as was reasonable in the circumstances of the case’. It also states that because certain behaviour could be categorised as gross misconduct, this does not mean that dismissal will always be reasonable.

The EAT upheld the tribunal’s decision. As Compass Group had not investigated Miss Okoro’s contention that she had taken the iPod as a practical joke, it could not be said that she had committed theft.

The court said that in some cases, an employee’s admission will be enough. No further investigation will be necessary. In other cases, further investigation will be required. Which applies will depend upon the circumstances of each case.

Criminal activities

What happens when an employee is arrested by the police? Most employers will consider whether he should be dismissed. However, an employer should conduct its own inquiry.

The police may discourage the employer’s investigation to protect their own from the risk of prejudice. The following case sheds light on the investigative process and what is expected of employers in such situations.

Example

H was employed by the Council as a youth project worker. Serious allegations of misconduct made against H regarding his treatment of three boys were passed on to the police. H was arrested and interviewed, but later released.

During the police investigation, it was alleged that H had accessed child pornography sites on a computer that a youth organisation had given him. The council suspended him. He was not charged by the police, but they gave the council a copy of the investigatory documents.

A council employee, P, investigated whether there was evidence of gross misconduct by H, and referred to the documentation provided by the police and spoke with H and the police investigating officer. P’s report was lengthy and detailed. It concluded that there was evidence of gross misconduct and that the matter should be referred to a disciplinary hearing, and recommended that H’s employment be terminated summarily.

H was found guilty of gross misconduct by the disciplinary panel and was summarily dismissed. He claimed unfair dismissal, saying that the council had not carried out a reasonable investigation and had not followed the criteria set out in British Home Stores v Burchill.

The tribunal rejected his claim.

On appeal, H argued that P’s report had the effect of controlling and dictating the outcome of the disciplinary hearing. The EAT disagreed and said P had been entitled to make recommendations in his report before referring the matter to the disciplinary panel; that all of the police papers had been included in the investigation; that H could have highlighted any deficiencies in the investigation at the disciplinary hearing, and that the disciplinary panel did not follow all of P’s recommendations.

Suspension

In cases of alleged gross misconduct, consider suspending the employee from work while the facts are fully investigated. You might take action to suspend if there is a risk of harm to person, property or the business. Suspension must be with full pay.

Suspension should only be used where it is really necessary to do so and it should be for as short a time as is reasonably possible. This may involve cases where any of the activities listed below are suspected:

  • Physical violence
  • Harassment (sex, race, disability)
  • Fighting
  • Fraud or theft.

When suspending an employee, make it clear that this is part of the investigation process and that he is under a duty to make himself available to assist in the investigation during all normal working hours. Staff who are suspended still have the right to be accompanied at a formal hearing.

It is extremely common for employers to suspend automatically if there is an allegation of gross misconduct. However, such action must be carefully thought through and suspension should be the last resort, in other words where there is no other option.

Example

In 2000, the Court of Appeal awarded a residential care worker substantial damages from her employers following an inappropriate suspension from work pending an investigation into allegations of abuse.

The investigation concerned a very disturbed child who had learning difficulties and a history of family abuse. During therapy sessions, the child had made remarks which could have been interpreted as allegations of abuse. As a result, an investigation was carried out and G was suspended for the duration. There is provision in the Children Act for the employer to suspend where there are allegations of abuse.

 After an investigation lasting a month, the employer concluded that there was no case for G to answer. However, as a result of the suspension, G had suffered a severe psychiatric reaction. The medical evidence was clear that the suspension was a substantial cause of this reaction. There was no pre-existing psychiatric history.

G brought a case based upon a breach of her contract of employment, and in particular the implied terms of trust and confidence.

The court found that suspending someone in these circumstances, particularly with the allegations made in the suspension letter, were calculated to destroy the trust and confidence between employer and employee and would, therefore, justify a claim for breach of contract unless the employers could, for their part, lawfully justify their actions.

There were two significant failures on the part of the council. Firstly, they had suspended before carrying out preliminary investigations to ascertain if there was a case to answer. The suspension commenced at the beginning of the investigation process and was held to be a ‘knee jerk reaction’.

Secondly, no realistic consideration was given to alternative employment during the period of the initial investigation. The court held that they did not believe that no alternative duties could be found during this period.

Burden of proof

If you are investigating the alleged breach of a workplace standard you will have to be satisfied that, on the balance of probabilities, there is a case to answer.

The balance of probabilities means that something is more likely than not to have occurred, or it is more likely than not that it did not occur. If the probabilities are equally balanced, you have not discharged the burden of proof.

Arguably the burden of proof has increased for employers where the matters under investigation are serious and could result in very severe penalties for the employee

Example

Ms Roldan was a nurse from the Philippines working for the NHS. She had four years of service when a healthcare assistant, Ms Denton, complained that Ms Roldan had mistreated a patient. Ms Roldan was told that a serious complaint had been made against her and was suspended.

During the investigation, Ms Denton was interviewed and completed an incident report; Ms Roldan and her supervisor were also interviewed. After hearing the evidence, the disciplinary panel dismissed Ms Roldan for gross misconduct. The panel stated that it accepted Ms Denton’s evidence and preferred it to Ms Roldan’s evidence, which it found to be inconsistent. The Trust rejected her appeal. As a result of the summary dismissal, Ms Roldan lost her work permit and therefore her right to work in the UK. She was the subject of a criminal investigation by the police. She complained that the dismissal was unfair.

The Court of Appeal agreed. One of the matters it considered in deciding whether the investigation was fair and adequate was the consequence for Ms Roldan of a finding of unfair dismissal. It said that, given that dismissal would lead to her deportation, a more careful investigation should have been carried out. This was particularly important because Ms Roldan had a previously unblemished record over four years of employment with the Trust.

Where there are allegations of misconduct, and there are two opposing accounts of an incident with little or no corroborative evidence either way, employers are not required to believe one employee and disbelieve the other. It is perfectly proper for the employer to say that, whilst not disbelieving the complainant, it has found the case against the accused to be ‘not proven’. The benefit of the doubt is therefore given to the accused.

The Three Stage Test

In misconduct cases British Home Stores Ltd v Burchell [1978] sets out the test by which employment tribunals can decide whether employers have acted reasonably in dismissing employees for misconduct and capability issues. It’s known as the three step test:

  • Did the employer genuinely believe the employee was guilty of the alleged misconduct?
  • Did the employer have genuine grounds to suspect that the employee was guilty of misconduct?
  • Did the employer carry out a reasonable investigation before making a final decision about the employees’ guilt?

Employment tribunals don’t focus on the employee’s guilt, or otherwise, but on whether it was reasonable of the employer to decide that they were guilty and then dismiss them. In other words, did the employer come to a reasonable decision after a reasonable investigation?

Examples of what might make a decision to dismiss appear unreasonable include:

  • Not giving sufficient regard to evidence that points towards an employee’s innocence;
  • Not taking an employee’s previous long standing good conduct and integrity into consideration when considering the truth of any statement made by them;
  • Choosing to dismiss an employee for gross misconduct for a trivial conduct matter.

What happens if an employee won’t cooperate with the investigation?

If a staff member refuses to cooperate with the investigation, don’t be deterred from taking action. He should be advised in writing that unless further information is provided, a disciplinary decision will be taken on the basis of the information available.

Next Steps

Once you have completed your investigation and decided that there is a case to answer, you will arrange the discipline meeting. Part of that is to ensure that the disciplining officer, employee and his companion have all been given a copy of your findings.

The discipline meeting with be chaired by another person who has not been involved in the discipline. You may attend the discipline to answer the discipline officer’s questions and those of the accused employee.

Template investigation report (Word format)

Preparation for a disciplinary hearing

  • Write to the employee, giving details of the complaint against him, a copy of the disciplinary procedure, and details of the time and place of the disciplinary interview. Be precise about the nature of your concern and give evidence supporting your view, including witness statements. (See Request to attend disciplinary meeting letter (Word format).)
  • Remind him of his right to be accompanied by a work-based colleague or a trade union representative.
  • Book a suitable meeting room.
  • Arrange with another manager or a human resources advisor to be present to take notes.

You should also make the following preparations:

  • Collate your evidence
  • Prepare possible questions
  • Consider possible answers
  • Familiarise yourself with the disciplinary process
  • Advise witnesses where they may be called
  • If the employee has any special needs – for example, is disabled or has a poor understanding of English – arrange facilities to enable him to fully participate in the meeting.

Give the worker reasonable time to prepare. The time is not laid down by the law. Acas recommends five working days, but it will depend on your own procedure and the complexity of the matter. It’s a good idea to check with the worker a day or so before the meeting to confirm that he is ready to go ahead.