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Having the facts before you act

Gateley Legal

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Picture the scenario. You’ve been told that there’s a photo circulating on a Whatsapp of a group of employees having a leaving party in the workplace. It appears that the party was held in May 2020, when the UK had strict rules in place to limit social contact. What do you do?

Instead, you would be expected to follow your disciplinary procedure, with a critical component of that procedure being to undertake a reasonable investigation before the disciplinary hearing. It is not until the conclusion of the disciplinary hearing that a sanction is considered, such as a warning or summary dismissal (i.e. dismissal without notice).

The Acas Code of Practice on Disciplinary and Grievances says that “employers should carry out any necessary investigations, to establish the facts of the case”. Although Acas provides little guidance as to the level of investigation required, in all but the rarest of cases, failure to carry out any investigation will fall foul of the Acas Code, meaning that if the employee were to bring a claim for unfair dismissal, the employee’s compensation award may be increased by up to 25%.

Similarly, case law reiterates the importance of a reasonable investigation when considering a dismissal arising from misconduct. The leading case, British Home Stores -v-Burchell [1978] IRLR 379, sets out a three-stage test for considering the assessment of reasonableness when dismissing an employee for alleged misconduct:

  1. Did the employer genuinely believe the employee to be guilty of misconduct?
  2. Did the employer have reasonable grounds for believing that the employee was guilty of that misconduct?
  3. At the time it held that belief, had the employer carried out as much investigation as was reasonable?

When carrying out the investigation stage of any disciplinary process, there are some key points to consider:

What is the role of the Investigating Officer?

The role of Investigating Officer is distinct from the role of Disciplinary Officer; it is not for them to form any conclusions on culpability, but instead seek to establish the facts based on the available evidence that both support and undermine the employer’s case. They are essentially “fact  finders” whose role is to obtain the relevant information, for example by conducting interviews with the accused employee and other witnesses.

It is therefore vitally important that the Investigating Officer remains impartial throughout the investigation process and keeps an open mind. They should not, at any point, pre-judge the outcome as this can affect the fairness of any subsequent dismissal.

Who should carry out the investigation?

We recommend that the Investigating Officer has no previous involvement with the matter to be investigated, and, if possible, be a different person from the Disciplinary Officer. In most cases, the employee’s line manager may be the appropriate investigator, however you should refer to your Disciplinary Policy which may stipulate who must carry out the investigation.

How much investigation is required?

As noted above, the Acas Code does not provide a huge amount of detail as to the extent of the investigation required. It is, however, accepted that the Investigating Officer must investigate sufficiently to ensure that the substance of the allegations is clear. This will allow the allegations to be adequately particularised to the employee, enabling them to provide a meaningful response during the disciplinary hearing.

It can be helpful for the Investigating Officer to prepare an investigation report that summarises the steps taken in the investigation, the allegations, and the available evidence. It may also recommend whether the matter should proceed to a disciplinary hearing or not. 

As the above demonstrates, an employer cannot act on mere suspicion when dismissing an employee. It must instead have a genuine belief that the employee is guilty, based on reasonable grounds after carrying out a reasonable investigation.

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