How to Carry Out a Disciplinary Investigation

As an employer, there may be times when you will need to conduct a disciplinary procedure. A disciplinary investigation is a crucial part of this process.

It's a way for employers to investigate disciplinary issues and establish the facts of the case. But if managed incorrectly you could face legal action, business losses and damage to your company's reputation.

In this guide, we'll look at what a disciplinary investigation is, when you need to conduct one, and how to follow the process fairly.

What is a disciplinary investigation?

A disciplinary investigation is part of the disciplinary procedure. It happens when an employee faces allegations of misconduct. It's a fair procedure carried out to explore the allegations, collect evidence and decide on the next steps.

A disciplinary investigation doesn't always lead to formal disciplinary action. Instead, it determines whether the employee concerned has a case to answer to.

If evidence is found relating to the alleged misconduct, then an employee will be invited to a formal disciplinary hearing.

When do you carry out a disciplinary investigation?

As an employer, you may need to carry out your own procedure for a range of reasons. No matter the allegation you must ensure that it is a reasonable investigation.

You may need to investigate claims of:

• Discrimination.
• Bullying.
• Harassment.
• Employee conduct.
• Victimisation.

No matter the claim it's important that it is investigated thoroughly. This includes holding investigation meetings, gathering physical evidence and planning a subsequent disciplinary hearing (if necessary).

What laws cover a disciplinary investigation?

Although there is no specific law in place, employers must ensure that their investigation is in line with the ACAS code of practice.

The ACAS code sets out practical advice on how to carry out a fair investigation following alleged misconduct. If the employee concerned chooses to take legal action, an employment tribunal will determine whether you adhered to the code or not.

If they believe that you didn't maintain procedural fairness, you could face serious legal consequences. Employers could face claims of unfair dismissal and be forced to pay compensation awards.

How long should a disciplinary investigation take?

Disciplinary investigations should be completed as quickly as without unreasonable delay But it must be done in a fair and thorough way.

The exact length of the procedure will depend on the incident and who is involved. For example, your investigator may need to take witness statements while gathering evidence. If it is a complex case with many people involved this could prove time-consuming.

You may have timescales for these types of investigations written in your employee handbook. But if not it's best to set a reasonable timescale for how long the process will take. This will ensure that the employee involved is aware of the circumstances.

How to carry out a disciplinary investigation

The disciplinary investigation process must be fair and objective. It's important to follow any policies or guidelines that your company may have and try to keep the case confidential. At least until evidence has been reviewed and a final decision made. The outcome should be kept confidential.

Let's look at how to conduct a disciplinary investigation.

Talk to the employee

You should make the employee aware of the allegation they are facing.

You should also provide employees with a point of contact. This should be who they should speak to should they have any questions or require extra information.

Select an investigating officer

There is no strict rule about who should conduct disciplinary and grievance procedures. But whoever you choose needs to be fair and impartial in the situation Your policies may set out who will invesigate. They are there to investigate the facts of the situation, not prove guilt.

When picking an investigator you should:

• Avoid picking someone who will conduct the disciplinary hearing.
• Avoid choosing anyone closely linked to the incident such as potential witnesses.
• Avoid selecting anyone personally involved in the incident.
• Choose someone with the skills to conduct the investigation or who has been trained to.

While larger businesses may rely on their HR team, it can be hard for smaller businesses to select a completely impartial investigator. Due to this, they may consider inviting an external investigator. This may also be necessary for larger companies in complex and exceptional circumstances.

Collect evidence

There are many ways to gather evidence during the investigation period. The investigating officer may need to speak to witnesses about the allegations. To do so, you should hold an investigatory interview.

You can gather other evidence by reviewing:

• CCTV footage.
• Computer records and email logs.
• Phone and video call recordings.
• Employment records.
• Other relevant documentation.

In cases of theft, an investigator may request to search an employee's possessions. This should only happen in exceptional circumstances. And you must provide a clear and legitimate reason for doing so. The employee must be present during any search, you should have a policy for this.

Speak with potential witnesses

The investigating officer may need to conduct interviews with witnesses. They can do so by inviting them to an investigation meeting. They should receive notice of the date in writing with information about what the investigation meeting is about and how their evidence can help.

Witnesses may choose to remain anonymous during the investigation meeting. However, this can put the employee at a disadvantage. Anonymity should only be given if a witness has a genuine fear for their safety. In this case, the investigating officer may hide their names during the meeting and on relevant documentation.

Hold a disciplinary investigation meeting

Once the evidence has been collected, you can hold a disciplinary investigation meeting. Here you will discuss the evidence collected and how it relates to the alleged misconduct.

The meeting is sometimes held in front of a panel. They may choose to question the employee about the allegations, and give them chance to put their side across. And discuss the relevance of any collected evidence.

Once the investigation meeting is over, the employee should need to approve a copy of their statement. Ask the employee to read any minutes. Any discrepancies between this and the evidence should be noted by the panel and investigator.

Consider the right to be accompanied

Employees have no statutory right to be accompanied during a disciplinary investigation meeting. Unlike at a disciplinary hearing where they are allowed to bring a trade union representative.

However, it can be good practice to allow the employee involved to bring someone to accompany them. This may be required as a reasonable adjustment, typically for employees with disabilities.

Make a decision.

Once all disciplinary investigation meetings have come to an end, the employer must decide on one of two outcomes. Either they will either decide there’s no claim to answer or continue the disciplinary process.

If there’s no claims to answer then the employer should send this in writing to the accused employee. But if the allegations are need answering, then the employer should arrange a formal disciplinary hearing. After this, the employer will decide on a disciplinary sanction.

The severity of the issue and the employee's employment history will play a role in the employer's decision. The employer could choose to give:

• A verbal warning.
• A written warning.
• A final written warning.
• A demotion.
• A dismissal.

This decision will be given to the employee in a formal meeting and in writing. The employee should be given the right to appeal.

Can you suspend an employee during a disciplinary investigation?

Sometimes it's necessary to suspend an employee during the disciplinary procedure. Employers will choose this step if they are concerned that an employee could compromise the investigation. Either by destroying physical evidence or influencing potential witnesses.

Employers should have reasonable grounds to back up these suspicions. And must explain to employees that this is not a punishment or a way of pointing out guilt.

Employees are legally entitled to full pay during their suspension. The period of suspension should be kept as short as possible and only used as a last resort. Employers should first consider alternative methods like a temporary transfer.

Get expert advice on disciplinary investigations from Peninsula

It can be hard to manage allegations of misconduct in the workplace. And it can be hard to know what steps to take if an employee has a case to answer.

That's why it's important to follow the disciplinary investigation process correctly. This can help you establish the facts and decide on a course of action. Without it, you could face legal claims, reputational damage and loss of employees.

Peninsula offers expert advice on disciplinary investigations. Our HR team offers 24/7 HR employment advice which is available 365 days a year.

Want to find out more? Seek advice from one of our HR consultants. For further support, call our telephone number 0800 028 2420.