1. Carrying out investigations
Toni McAlindin
March 2013
To join the Employment Law network and receive free bulletins

2. When is investigation needed?
There are many employment situations which require a rigorous and thorough investigation
Caselaw has developed over the years regarding a “reasonable” investigation
It is a significant factor in cases of unfair dismissal and in cases of discrimination particularly allegations of bullying and harassment
However other situations require an employer to “investigate” ie gather information

3. For instance
Cases of misconduct – probably the most obvious areas eg theft, violence, breach of company policies
Attendance and performance issues
Bullying and harassment – whether or not linked to any discriminatory reason
Absence due to stress
Grievances raised by an employee
Collective grievances
Following action against the company such as losing a tribunal
Whistleblowing allegations
Etc, etc …………. In other words it is a normal part of everyday management

4. The disciplinary investigation
Whatever the reason for conducting an investigation, several factors will be common
For instance the rules of natural justice ie everyone has the right to know the case against them – so it must be properly investigated to ascertain what that case is
Everyone has a right to answer – this is part of a fair procedure in general – however an individual may be interviewed as part of the investigation – at the “fact finding” rather than “blame giving” stage
There should be no bias
Therefore an individual who is a victim, a witness or likely to play another part in proceedings should not carry out an investigation
This is particularly true of misconduct investigations but less true of investigations into attendance or performance

5. Discipline continued
Investigations are key to following a fair procedure
An inadequate investigation might render dismissal unfair
To be fair a dismissal has to be for one of the five potentially fair reasons ie conduct, capability, redundancy, statutory ban, some other substantial reason
An employer must then go on to demonstrate that he acted fairly
An employer is not expected to achieve the criminal standard of beyond all reasonable doubt but only a reasonable belief
The leading case is British Home Stores v Burchell 1978 where the EAT held that an employer must establish a genuine belief on reasonable grounds after a “reasonable investigation”
In Polkey v Dayton Services Ltd 1987 the House of Lords held that any procedural shortfall will make a dismissal unfair (although compensation might be reduced following the “no difference rule”)
Failure to follow the ACAS Code on discipline might lead to an uplift of up to 25% on the compensatory award

6. Purpose of investigation
As stated in the ACAS code – to establish the facts
Should be someone at management level – procedures may dictate who does it – in large organisations there may be specific trained investigators
Different person to the one conducting the hearing
Employee may want to carry out own investigation
Depends on what is being investigated eg appraisals for performance, sick notes, contractual terms, other employees’ discipline, letters, s, policies, procedures, speaking to other staff, unions, representatives
Where an employee is suspended it is difficult to collect evidence – sometimes that is why the individual is suspended to stop them influencing the investigation or other employees

7. Polkey
The famous case of Polkey – often called the “no difference” rule ensures that failure to follow a proper procedure including investigation is almost guaranteed to make any dismissal unfair
The level of compensation, however, may be reduced to reflect the fact that a fair procedure may have led to the same outcome
However why chance it – better to have a fair procedure including discipline ie there are no circumstances when failure to investigate can be excused no matter how flagrant the misconduct

8. Seriousness
The more serious the potential consequences the higher the standard of investigation required
Salford Royal NHS Foundation Trust v Roldan a nurse was accused of mistreating a patient, based on the evidence of a colleague. Dismissal for GM was the end of her career, loss of work permit and deportation – high standard required
Crawford v Suffolk Mental Health Partnership – nurse unfairly dismissed following an allegation that she used improper restraint methods on an elderly patient. Dismissal unfair – hospital conducted staged reconstruction without inviting the claimant or her representative

9. Range of reasonable responses – carrying out further investigation
Stuart v London City Airport – individual worked at City airport
Went into duty free to buy present
Held in his hands – re-directed to a different till
Called over by colleague over the store boundary and had a discussion
Dismissed for misappropriation
Did not interview store operatives or other colleague
Did not check CCTV camera
Unusual for court to intervene and require further investigation but here EAT stated that where there are serious allegations of dishonesty then failure to carry out exculpatory investigations was objectively unreasonable

10. Suspension Consider very carefully whether it is required
See recent case of Crawford v Suffolk Mental Health Partnership NHS Trust – two nurses suspended pending investigation into mishandling patient with dementia
Six month suspension
Court of Appeal – held sometimes a long suspension may constitute breach of trust and confidence, can lead to stigma even if no discipline
Held no real risk of behaviour being repeated if they stayed at work – astonished that referred to police
Suspension should not be automatic – each case should be considered on its merits ie risk of repetition, impact on other staff, fair investigation

11. Criminal offences
The ACAS code makes it clear that just because an employee is charged with or convicted of a criminal offence, this is not enough in itself for disciplinary action
Consideration needs to be given to what effect the charge or conviction has on the employee’s suitability to do the job and their relationship with their employer, work colleagues and customers (para 30)
In other words it depends on the nature of the offence, whether it happened at work (often will be gross misconduct) or outside of work, the nature of the job, the impact on the workplace eg reputation
Someone charged with fighting – may have no impact on work, someone charged with sexual offences – may have an impact depends on the job and other colleagues
It is not for the employer to take a moral view of the conduct but to look at how it affects the employer and the employer’s reputation
Criminal offences at work will normally be for “conduct” reasons, outside it may be “SOSR” eg trust and confidence

12. Police investigations
If the police are carrying out a criminal investigation into a matter that is also part of a disciplinary investigation the employer may be hampered in gaining sufficient information
This is particularly likely if the incident happened outside of work
See Leach v OFCOM allegations of child sexual abuse whilst on holiday in Cambodia
Several branches of the police said that he was under investigation
Employer had no way to test the information but feared damage to reputation and dismissed for breach of trust and confidence
ET – fair dismissal for SOSR, proper hearing, had not just accepted word of CAIC but investigated as far as it could
EAT held Ofcom entitled to protect its reputation
CA – only question was whether this was SOSR
Aware of potential injustice but only question was had the employer acted reasonably – injustice not from employer but those falsely accusing him
Employer would have neither expertise nor resources to independently verify the allegations

13. Police investigations contd
The employee may be advised by his lawyer not to cooperate for fear of damaging any criminal trial
It may be difficult for an employer to get access to relevant information to conduct a proper investigation
The employer must carry out his own reasonable investigation as far as the circumstances allow
It should not rely on the outcome of police investigations as for the most part these will relate to criminal sanctions with a different burden of proof and potential penalty
If the police investigation does not result in prosecution the employer could still conclude that disciplinary action is justified on the basis of his own investigation because the test is “reasonable belief” whereas in a criminal case it is “beyond all reasonable doubt”
If the police investigation results in a prosecution an employer will have to decide what impact that has on his or her decision to dismiss eg if the employee is in prison, is found guilty of a crime (this is likely to be gross misconduct)

14. Group Dismissals
Sometimes it can be impossible to ascertain who committed an act of misconduct particularly areas such as theft
It may be clear after investigation that it is one of two or more but not possible to decide whom
It can be fair to dismiss both or all if
act justifies dismissal
employer has made a thorough investigation
employer reasonably believes more than one person could have done it
employer identifies the group who could have done it
each person was individually capable of doing it
employer cannot reasonably identify the culprit
Equally an employer may have two conflicting sets of information and must decide who to believe – if unable to resolve conflicting accounts – the wrongdoer might be given the benefit of the doubt
_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________________________________________________________________________________

15. ACAS code of practice on disciplinary and grievance procedures
Practical guidance on handling discipline and grievance situations and recommendations about investigations
It suggests
Establishing the facts of the case by carrying out investigations without unreasonable delay
Sometimes this will be collation of evidence eg performance or attendance figures, paper evidence etc
Others will require investigatory meetings with the employee and/or others eg witnesses
In misconduct cases different people should carry out the investigation and disciplinary hearing
If there is an investigatory meeting, it should not in itself lead to any disciplinary action
Any period of suspension should be as brief as possible and should be kept under review
Although there is no statutory right for an employee to be accompanied at this stage, such a right may be granted under the employer’s policy

16. Act quickly
The code emphasises that any investigation must be carried out without unreasonable delay to establish facts before memories fade
Relevant factors may include whether the employee had admitted any of the allegations, whether key facts were properly investigated at an early stage (Lim v Royal Wolverhampton Hospitals NHS Trust), the extent to which allegations rely on memory as opposed to paper evidence and whether witnesses still work for the employer
Problems arise where the police or other external parties are involved eg Care Commission in a care home

17. Questioning your accuser or manager
Everitt v British Telecommunications plc - EAT held employee was not entitled to question his line manager as to the latter’s investigation as the employee had admitted the offence
The only purpose would have been to question the manager’s motivation rather than dispute the adequacy of the investigation or the truth of the allegations he made against the employee
No hard and fast rule – depends at all the circumstances
For dismissal to be fair employer must establish that it reasonably believed that the employee committed the act of misconduct – to do so it must have carried out an investigation that is reasonable in all the circumstances. Where as here the employee admits the offence, the need for further investigation is reduced
However he still has a right to make representations on the allegations

18. Establishing the facts
Keep an open mind especially if the issue is a serious one
The nature and extent of the investigation will depend on the seriousness of the matter
Look at the evidence
The meeting should be confined to establishing the facts not deciding on a penalty
Know your own policies not just discipline but any other area you are investigating
Some issues will be regarded as minor by one employer but less so by another depending on the industry norms
For instance does the policy lay down timescales for carrying out an investigation, does it mention who and at what level should carry out an investigation?

19. Investigatory meeting
Depending on the circumstances it may be necessary for an investigating officer to take a statement from an employee accused of misconduct so as to obtain his or her account of events
This is more likely where there are doubts about the evidence eg one person’s word against the other, third parties giving evidence
As with other areas of discipline it is important to give the employee notice of any meeting and time to prepare
There may be a need to interview several witnesses
Equally it may become apparent during the investigatory meeting that other people have to be interviewed
Some may be reluctant witnesses eg other members of staff particularly if there are issues of bullying
See rules on anonymous witnesses – obviously not ideal but not uncommon
See also witness statements

20. Witnesses
The investigating officer should arrange to meet individually with any witnesses to the incident or events
He or she should ask the witness to give his or her own account of events ie not hearsay or second hand information but what they themselves saw or heard
Statements should be made into witness statements and checked by the witness for any errors
Employers cannot insist on an employee providing a statement and may need to address any concerns
It may be possible to anonymise some or all of the statement ie blanking out parts which identify the witness or providing only a summary of the statement
If anonymous statements are used the investigating officer should seek corroborating evidence of make a judgement as to whether the witness has any motive in lying
It may be necessary to re-interview witnesses during the whole process as other relevant evidence comes to light

21. Witness statements
Hussain v Elonex 1999 IRLR 420
main question is whether there is a fair and reasonable investigation
no universal requirement to show statements
but could be contractual requirement (avoid where possible)
must only disclose statement if it contains the essence of the case and
employee otherwise does not know case against them (rules of natural justice
Many witness statements may be taken but only a small amount of the information might be relevant. The employee has no inalienable right to see this information only to know the case against him or her.

22. Anonymous informants
Guidance in Linford Cash & Carry v Thomson 1989 IRLR 235 ie
disciplining manager to interview informant
establish whether there is an ulterior motive
is the information credible ie could the witness have seen the act, heard comments etc
is there any corroborating evidence
reduce information to written statements
may be able to give statements with names deleted or verbally
refer back to informant if issues arise at hearing

23. Anonymous informants
Ramsey v Walkers Snack Foods Ltd- dismissal for theft of money in crisp packet – challenged when evidence came from employees who did not wish to be identified
Informants interviewed by HR manager who prepared written statement – unsigned – contained no information which might identify informants
EAT held fair dismissal even though not all guidance in earlier case of Linfood Cash & Carry Ltd v Thomson were complied with ie lack of detail – more detail might have identified witnesses
Managers involved in disciplinary hearing did not interview witnesses or weigh up their evidence – witnesses did not want to be interviewed by wider pool of managers
Need to look at reasons for anonymity and whether it should be extended on the facts of the case

24. Surveillance evidence
Time moves on as does technology. Cases are now likely to involve social media both inside and outside work, secret recordings – (see recent HMV case where employees uploaded redundancy meetings to Youtube)
CCTV – covered by Data Protection – invasive
Common to have cameras inside work but rarely covert but may use covert where crime or serious offence is suspected. Often use to “spy” on employees is assumed to be abusing sick pay scheme
McGowan v Scottish Water – EAT confirmed that human right respect for private and family life (Art.8) is triggered by surveillance of staff. But it is a balance – as long as a proportionate means of achieving a legitimate aim – eg crime prevention
In the above case two private investigators watched Mr M coming and going from home – held proportionate
Important to explore other alternatives first – should have a policy which allows and tell employees – should be time limited

25. Documentation
The investigating officer should collect any statements and other documentation relevant to the disciplinary issue
These may include expenses claims, absence records, clocking in cards, video or CCTV evidence
The investigating officer should compile the information and submit this with his or her recommendations to the person or persons who will make a decision on whether to proceed to the disciplinary interview stage
This information should also be provided to the employee
The employee should have the opportunity to see this information prior to the hearing (subject to what was said above re anonymous witnesses)

26. The right to be accompanied
As an investigation is a gathering of facts, it is generally understood that there is no right to be accompanied as there is for the disciplinary procedure itself
However a company’s own procedures may provide for a right to be accompanied and in some cases a right to be represented (more involved than accompanied)
Trade unions and representatives believe that individuals should have a right to be accompanied
Management do not always agree arguing that this stage is a gathering of facts not an accusation or a disciplinary hearing
However some individuals may feel confused or give rise to concerns during answers to questions

27. Five “Ws” – helpful in investigation
It may be useful to consider the following when conducting an investigation particularly into issues of misconduct
WHO - was involved, witnesses
WHEN - incident handled, in work or out
WHAT - happened, different versions, records needed eg job descriptions, rules
WHERE - did it happen
The fifth is more important in the hearing itself
WHY - incident took place, at that time or place, involving that particular person
NOTE IMPORTANCE OF DIFFERENT PERSON CONDUCTING INVESTIGATION THAN HEARING
Notes
_______________________________________________________________
______________________________________________________________

28. What to do What evidence do you need?
Who do you need to speak to eg what witnesses
See above for witness statements - better to speak to a person and record
Other things eg CCTV, documentation, policies
Perishable evidence
Can interview employee under investigation and any witnesses more than once as other information comes to light
What do you need from each person, putting alternative versions to witnesses
Remain flexible – have some idea of what questions you want answered though
Don’t put words into witnesses’ mouths or suggest answers
Ask for information in the witness’s own words
Record and have the person check afterwards that this is what was said
Train managers to undertake investigations
Should there be suspension

29. Case to answer
The purpose of gathering facts is to decide on whether there is a case to answer
No disciplinary action should be instigated at an investigatory stage
There should be a clear separation between the two stages
A number of choices need to be made depending on what arises during the investigation eg anonymous information not backed up by more – do you continue at all even if you feel it is genuine
Conflicting information – do you give the employee the benefit of the doubt
Is there enough to move to carrying out covert surveillance
Is more than one person involved and one if not both must be the culprit
Remember – reasonable belief, on reasonable grounds, after reasonable investigation (see above for what is a reasonable investigation)

30. Performance and attendance
Although the basic rules are the same, in reality the immediate line manager will conduct the investigation into “capability” type discipline
It is still important to ascertain the facts eg level and frequency of absence, reasons for absence, whether there is a disability, what the prognosis is, whether any adjustments need to be made, impact on other staff
With performance management should have robust performance appraisal systems but these tend to be an annual evaluation whereas performance management should be ongoing ie what are the standards expected of the employee, what is the actual performance and therefore what is the gap
Discussion should then centre on the reason for the gap and ways of closing the gap
This should be done before any formal discipline takes place

31. Grievance investigations
When an employee raises a grievance it is important that it too is investigated
Take the grievance seriously ie why does the employee feel aggrieved
Investigate the facts and the surrounding circumstances – show the employee that action has been taken to ascertain the grievance
Look for a solution that will satisfy the employee but not damage the employer or other employees
Provide feedback but be careful re what is happening to other employees as a result eg grievance against a manager

32. Grievance investigations contd
A grievance may raise issues unknown to the manager who may not know or have all the facts
There may be allegations about another employee eg bullying and/or harassment
These will have to be investigated promptly and sensitively – where the grievance relates to another employee both have rights at work
This may necessitate talking to witnesses
It should be stressed that any discussion is confidential – equally the party should not discuss matters with others
Don’t make assumptions
Keep an open mind – it will often be one person’s word against the other

33. Disciplinary Interviews
If the investigation concludes that there is a case to answer then there should be a proper and separate disciplinary hearing conducted by a different manager.
The principles are:-
Thorough preparation
Stating the purpose at the start
Conducting it fairly but firmly
Listening to all sides and views
Stating the outcome clearly and sympathetically
Sometimes it may be worth having a script – this could rarely be followed verbatim but it helps concentrate the mind on the essentials
Often emotions get in the way ie anger, tears, violence
Accurate documentation is VITAL
_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
_____________________________________________________________________________________________________________________________________________________________________________________________

34. Summary Act quickly Inform the employee Decide who to interview
Conclude in a reasonable time
Establish the facts, who, where, when, how and maybe why although this may be part of the disciplinary hearing
Confidentiality
Clarify
Who should carry out the investigation
Documentation, policies, procedures, previous cases, recording
Suspension
Right to be accompanied
Preparation of questions

35. Dos and dont’s
Allow witnesses to refer to documentation to refresh memory
Pause if the witness needs a break
Record all pertinent facts
Keep calm and focused
Remember all parties need to keep things confidential
Don’t be afraid to challenge the witness
Don’t substitute your own view
Don’t encourage witnesses to offer opinions and don’t offer your own
Don’t assume or draw hasty conclusions
Don’t disclose confidential ifnormation