Workplace investigations: your employees’ rights

Before an employer takes any disciplinary action, they first have to carry out a balanced and unbiased workplace investigation to establish the facts and ensure objective decision-making.

This guide to workplace investigations will help employers understand their employees’ rights and their own obligations under UK law.

 

What is a workplace investigation?

 

A workplace investigation is an investigation carried out as part of the decision-making process in grievances and disciplinary procedures taken by an employer in respect of an employee.

An employer would either investigate the grievance itself to remedy any complaint by another employee or investigate any misconduct by an employee in respect of a disciplinary procedure.

There are numerous reasons why an employer might take disciplinary action against an employee, for example, in relation to their behaviour at work, the standard of their work or their repeated or prolonged absences from work. If an employer has concerns about an employee, they should always first investigate the circumstances of the concerns or of any complaint made against the employee. Such investigation is basically a fact-finding exercise, an opportunity for the employer to gather all relevant facts and understand both sides of the situation.

It is imperative that the investigation is done in a balanced and unbiased manner, so that the interests of both the employee and the employer are considered, and any evidence acquired both supports and opposes the issue. This allows the employer to make an informed and fair decision as to whether they should commence disciplinary action.

 

When are workplace investigations used?

 

While there is no statutory obligation for an employer to carry out an investigation before commencing disciplinary action, it is always good practice to do so to manage legal risk: a lack of investigation, or lack of a thorough investigation, in an unfair dismissal or discrimination case brought by an employee may count against an employer; they may be deemed as not having acted reasonably in the stages leading up to a dismissal or their conduct might be portrayed as a further discriminatory act against an employee.

Indeed, the ACAS Code of Practice on disciplinary and grievance procedures covers investigations, and whilst not legally binding, it states that “employers should carry out any necessary investigations, to establish the facts of the case” and is the minimum an employer should follow. Some workplaces may also have their own internal policy to promote consistency and compliance across the organisation when dealing with investigations, which should be followed.

Failure to comply with ACAS will therefore act as evidence of a failure on the part of an employer to act in a reasonable way and may also allow a claimant in a case to seek an uplift of up to 25% in any compensatory award on winning their case. Above all, an investigation should be fair, proportionate to the circumstances, reasonable and appropriate.

Many issues can be dealt with informally, through mediation, informal meetings, and good management by the employer. An investigation is only necessary when it is decided that the matter needs to be dealt with formally. This may be required by internal policy or where it is felt that a formal process is needed to establish all the facts of the case and that further investigation is warranted to enable the employer to reach a fair decision.

 

How to conduct a lawful investigation

 

While each investigation will be as unique as the issue being investigated, the following key principles and considerations should be followed:

 

Who should investigate?

There should always be a distinction between the workplace investigation and any subsequent disciplinary action, and therefore, ideally, they should be carried out by different people. An employer should decide who the best person to conduct the investigation will be.

In doing so, they need to consider the identity of possible relevant witnesses in the matter; the experience, training, and authority of any potential investigator; who would conduct the disciplinary procedure if it reached that stage, or any appeal thereof, and whether there might be a conflict of interest between the investigator and the employee in question, which might jeopardise the investigation.

Above all, an investigator should remain impartial whilst having sufficient knowledge of the situation. They should also treat the matter sensitively and confidentially. If a person within the organisation proves unsuitable, it may be preferable for an employer to appoint an external investigator to meet these requirements. In more serious cases, for example where there are allegations of bullying or sexual misconduct against a senior member of staff, it may be more appropriate to appoint an external investigator.

How long should an investigation take?An investigation should be carried out as soon as possible after an issue arises or concerns are made known to an employer. ACAS states that “unnecessary delay may cause memories to fade or give the perception of an unfair process”. However, there are no time limits, and a workplace investigation can take days or weeks, depending on the complexity of the matter, the number of witnesses involved and the amount of documentation that needs to be compiled. An employer should aim to give some sort of timeframe by which the investigation will be completed; this can be extended if necessary.

 

Gathering evidence

In most investigations, witness interviews and statements will be the main source of evidence. All the facts of the case should be established in an impartial way, supporting both sides of the alleged event or concern. Witness statements will be drawn up based on the witness interviews, and such statements will be signed by the witness confirming their accuracy. Investigators and employers should be mindful of workplace politics and possible witness motives. Other physical or documentary evidence may be used as part of an investigation, but anything used must be obtained lawfully.

Employers should always bear in mind that an investigation is a fact-finding exercise and any evidence gathered must be necessary for the purposes of the investigation, as well as being appropriate and proportionate. The employee’s rights must also be taken into account during the investigation.

The investigator should carefully record all the evidence gathered, and state how it was obtained and what it shows. Any intrusive search should be allowed for in the workplace policies. The investigation will conclude with the issuance of a report, which summarises the evidence and gives recommendations as to whether, or not, disciplinary action should be taken. It should not comment on the guilt or otherwise of the employee.

If an investigation does lead to disciplinary action being taken, the employer must establish that they believed the employee to be guilty of the misconduct in question, that they had reasonable grounds for this belief and that they carried out as much investigation as was reasonable to support that belief.

 

What are an employee’s rights during a workplace investigation?

 

An employer should always attempt to sort out a grievance informally initially by talking to the employee about any concerns they have. An informal conversation may clear up the matter. An employee should keep a note of the conversation and any agreed outcome.

If it does not prove possible to resolve the issue through informal means, an employer may have no choice but to decide on taking more formal disciplinary procedure either in accordance with ACAS or their own workplace policy.

The investigation should always be the first step of the procedure. During the investigation, an employee does not have the right to be accompanied to any investigation meetings, nor to see any of the evidence being gathered, unless any workplace policy states otherwise. An employee can, and should, obtain a copy of any policy so they know what to expect throughout the procedure.

During an investigation, an employee should cooperate as fully as possible and provide any evidence supporting their case promptly, ensuring its accuracy.

If an employer decides to take disciplinary action, they should write to the employee confirming the decision, explaining the basis on which they have made the decision, and informing the employee that the next step to be taken in the process will be a disciplinary meeting to discuss the issue. An employee does have the right to be accompanied to this meeting (by a colleague or a trade union representative, for example) as well as the right to see any evidence at this stage. An employee should be given ample opportunity at this meeting to set out their case. Disciplinary action should not be taken before this meeting has been conducted.

If an employer is still going ahead with action after this meeting, he should write to the employee confirming this and explaining that the employee has a right to appeal this decision. Appealing a decision may be worthwhile for an employee, especially if the case ends up in an employment tribunal, where the level of compensation awarded may be affected if an appeal was not made by the employee.

An employee can seek advice from an employment solicitor throughout the investigation and disciplinary process; a solicitor can advise on the strength of the employee’s case, assist with preparing any written submissions on the employee’s behalf and negotiate any settlement between the parties. A solicitor generally will not be able to accompany the employee to any investigation or disciplinary meetings.

If an employee is dismissed and has been in service for at least two years, they may have a case for unfair dismissal if the correct procedure has not been followed. This might arise where the evidence against the employee is not strong enough to warrant dismissal, or where sufficient evidence was not gathered during the investigation, or where workplace policy or the ACAS code of practice was not followed. If an employee has a disability, a dismissal will be unfair if the employer did not make reasonable adjustments within the workplace to accommodate the disability before taking disciplinary action.

If an employee does decide to take their case to an employment tribunal and they subsequently win, it is likely that any award payable to them by their employer will be higher if the employer did not follow the ACAS code of practice. Similarly, in a case of unfair dismissal, a dismissal will likely be deemed unfair by a tribunal if the code of practice was not followed.

Therefore, it is crucial that an employer follows the ACAS code of practice or an equivalent workplace policy when considering taking disciplinary action against an employee; doing so is in the best interests of both parties and will ensure that a fair investigation is carried out.