Conducting Disciplinary, Grievance and Capability Investigations -Doing It Right

April 9, 2018
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The thought of an investigation often seems to strike fear into the minds of employers of getting it wrong.  However, something that not all employers consider straight away is that you don’t need to launch an investigation every time.  Unless your policies and procedures require you to take a particular route, what informal options are open to you? Would a quiet word actually solve the issue – or perhaps some mediation instead?

If an employer does need to run an investigation, it needs to be 100% safe and in line with the ACAS Code.  Doing this requires ensuring 100% that the facts are straight.  Any investigation is about finding out what did and didn’t happen before making the decision of what happens next.

Appoint an investigator

The first stage is to appoint an investigator within your organisation who is a good communicator, not personally involved, not easily influenced. If there is no-one suitable in your business, there is the option of appointing an external investigator, who ideally knows your organisation. The more serious an allegation (and hence its consequences) the higher the level of investigation that should take place.

It is important that your investigator understands what is expected of them – and very importantly – what the limitations of their role is.  It is NOT their role to make a decision for you. That will be the responsibility of the Disciplining Officer or the person hearing the grievance.  Finally, they must remain a ‘safe distance’ from the people they are speaking to i.e. remaining impartial.

What can you tell the investigator in advance of the investigation commencing? There is no ‘magic’ list. All you need to do is be reasonable.  But what is reasonable?  You as the reasonable employer should take reasonable steps to be satisfied that an admission was true and legitimately provided before acting on it.

To comply strictly with the ACAS Code an investigator should produce an Investigation Plan summarising the purpose of the investigation, what the investigator plans to do, who will be interviewed, what documents will be consider and how long the investigation is likely to take.

Confidentiality

Confidentiality is at the root of any investigation and it needs to be as confidential as it can possibly be. Sometimes you may need to remind witnesses that a breach of confidentiality could be grounds for disciplinary action against them.  Another potential opening for disciplinary action is the witness who won’t cooperate with your investigation either.  Just make sure your request was in writing and … you guessed it, reasonable!

The investigation meeting

Many employees mistaken believe that they have a right to be accompanied at an investigatory meeting. This isn’t the case (with some caveats as always). However, why would you disallow this in practice? A work colleague, or in special cases, a friend or family member may actually be helpful for you in taking the proceedings forward.

At the meeting, the investigator should ask questions to establish the facts.  They should probe – but not as if you are in court! They should make a note of the responses received – and if there aren’t responses, note that down too.

When the meeting has concluded, it is important that the interviewee has a chance to review their written statement for accuracy. You may also need to establish if further evidence needs to be collected or if additional interviews need to be arranged.

At the end of the process, the investigator should produce an Investigation Report. This should include explanations of why the investigator did certain things and reached their conclusions.

They should also present their recommendations:   These vary between:

  • Formal action
  • Informal action
  • No further action

In conclusion, the investigation is the key to a robust, and fair, process. With preparation and planning, there is no need to dread or avoid conducting a robust and effective investigation.

MorlanGil Human Resources offers extensive experience of conducting investigations and can provide an Investigator for you – or provide robust investigation plan and report templates to help guide you each step of the way. We look forward to hearing from you!

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