27/07/2016
1. Failing to prepare is preparing to fail
Resist the temptation to go full tilt into the investigation itself; taking time to prepare at the start will pay dividends later on. But what are the key initial considerations?
- Arranging an early 'case conference' to decide on strategy and approach.
- Deciding on your terms of reference (see below).
- Deciding on timescales: what will happen and when? A timeline is a good way to manage this.
- Allocating the right personnel. Who has the relevant sector / departmental expertise to manage the investigation? Who will undertake the final hearing?
- Do any other bodies need to be informed, such as the police or NCAS?
2. Terms of reference are your friend
Drafting your terms of reference is a vital initial step and getting this right will give you the best possible chance of running an effective investigation. But what makes good terms of reference? They should be concise and clearly defined. Crucially, you should ensure that the investigation stays within the parameters identified.
That said, remember that you may need to change the terms of reference during an investigation. If that happens, then the change should be agreed with the line manager, HR representative and case manager.
3. Investigators need support but not influence
If you are using an internal investigator, the investigating manager will need some support. The main source of support is likely to be from HR, who can provide guidance on general matters, such as process and procedure. However, it is important that this support does not stray into influencing the conclusions of the investigating manager, as this may render any subsequent dismissal unfair (Ramphal v Department for Transport, EAT).
4. Catching the curve balls
A common 'curve-ball' (a cynic might call it a 'tactic') is where a grievance is raised by the employee under investigation. If this happens, it need not derail the process: the disciplinary process may be temporarily suspended in order to deal with the grievance and then re-start. However, where the grievance and disciplinary cases are related, it may be appropriate to deal with both issues concurrently. You will then have to judge which option is appropriate, depending on the circumstances. However, employers were recently reassured by the Employment Appeal Tribunal's decision in Jinadu v Docklands Buses Ltd which confirmed that, on the particular facts of that case, it was appropriate for the employer to continue with disciplinary proceedings at the same time as dealing with an employee's grievance. For a summary of the Jinadu decision, please click here.
Another potential 'curve-ball' is employees' failure to attend investigation meetings or the disciplinary hearing. In these circumstances, you will need to tread carefully and, where absence is due to sickness, be alive to potential disability discrimination claims. However, there are a number of options available to you if continued absence threatens to stall the investigation process. For example, you may wish to question the employee's medical advisor about what the employee is able to do, rather than what they are not able to do. You may wish to offer alternative ways of investigating / conducting a hearing – for example
- meeting at the employee's home / a neutral location
- conducting meetings by telephone
- allowing the employee to use a representative
- allowing written representations.
If a fair solution which is acceptable to both employer and employee cannot be found, and continued absence is likely to hinder an investigation, then it may be acceptable to write to the employee explaining why their absence is an issue and that you may need to go ahead without their contribution. You should clearly explain the consequences of the employee's continued non-attendance. Any subsequent decisions would then have to be based on the evidence available.
5. Keep your mind on the paper trail and the paper trail on your mind
Keeping an accurate record of the investigation carried out is vital. Although this may seem a tedious task, it will prove that you have carried out a reasonable and thorough investigation and may come to your rescue at any subsequent hearing.
Collate papers as they come in, and remember that the employee is entitled to be provided with copies of all evidence on which you intend to rely.
Some employers may wish to arrange for a minute taker to be present at investigatory meetings and for minutes to be supplied to attendees following the meetings – but you may wish to think twice before offering to 'agree' minutes with the employee; this risks delays, disputes and loss of focus on the key issues. A more straightforward approach may be to ask the employee to register any feedback, and any un-agreed comments can be appended to the minutes.
A final note of caution on documentation and investigations: remember that you are under a wide duty of disclosure to an employment tribunal. You must disclose all relevant evidence in your control, including evidence which might be prejudicial to your case – for example, emails between HR and the investigating manager, emails within HR, manuscript notes of meetings and diary entries. Confidential documents are still subject to the duty of disclosure. The main exception to this rule is that you are not required to disclose documentation covered by legal professional privilege, i.e. advice from solicitors regarding the dispute in question
And tip number six…
If you require any assistance with employee investigations, whether in respect of disciplinary, equalities, performance, whistleblowing or grievance matters, Bevan Brittan has a team of experts available to help. We can take ownership of the entire investigatory process for you, from initial planning and drafting terms of reference, through to obtaining the evidence and producing the final report. In addition, we provide 'helpline' support on specific issues during an investigatory process and draft or review key documentation. Our clients also have access to our "Associates Network" of external workforce, OD and employment law specialists who can provide additional support to you and your management teams. – ranging from investigations to OD interventions, to project management. Please do contact me or another member of the Bevan Brittan employment team for more information.
