Most business owners are acutely aware that a fair procedure must be followed when disciplining staff, and even more so when dismissal is being contemplated. One of the key aspects of any disciplinary procedure is the investigation stage, so here are eight things to remember when conducting an investigation in a small organisation:
What the investigation is for
The investigation is to establish the facts of the case, to establish whether a disciplinary hearing is appropriate and necessary and gather and prepare evidence for a hearing if the procedure is going ahead. You may believe something could be a disciplinary concern, but after an investigation, find that actually, disciplinary action is not warranted and drop the case.
It doesn’t have to take ages
Establishing facts and preparing evidence doesn’t necessarily mean a lengthy and arduous investigation, depending on what the allegation is. If you are considering disciplining someone for performance reasons, it may be a case of getting together previous appraisals, notes of meetings and productivity data. If the offence is something simple and straightforward, the investigation may well be too.
For something more complex, interviewing witnesses, seeking client input or undertaking audits or computer investigations may be necessary or appropriate.
Who should conduct the investigation
If the matter is particularly involved, and requires interviews to be conducted, and evidence to be sifted through, then it is preferable to get a manager who is not directly involved in the case to conduct the investigation. Realistically in small organisations this is often not possible and an investigation may need to be conducted by a line manager or business owner themselves.
There are companies who specialise in conducting complicated disciplinary investigations, and with particularly complex or serious cases, these can be a good option. Having an investigation conducted by a third party who is not directly involved can be very helpful particularly where the case is particularly sensitive. Even if a specialist investigatory company is not appropriate or necessary, if you have an HR consultant you work with, their involvement can help ensure you follow a fair procedure, and also provide a useful viewpoint from their position of being not directly involved in the personal relationships between the affected parties.
What reasonable means
To constitute a fair dismissal, the employer must have reasonable grounds to believe the employee is guilty of the misconduct in question, must have undertaken a reasonable investigation to come to that conclusion, and the sanction proposed must be reasonable in those circumstances. Reasonable is a word that crops up a lot in employment law, but although it can sometimes seem vague and unhelpful, actually it means that Employment Tribunals will take into account resources available to the organisation in question in terms of determining whether an investigation has been reasonable.
Suspension may be an option
If you feel that there is a threat to the business, to employees, or to the integrity of an investigation if the employee remains at work, or if relations have broken down to the extent that them remaining at work during this period is not viable, you can suspend them on full pay. It’s important to note that suspension is not either a disciplinary sanction in itself, or an assumption of guilt, and suspension should be reviewed regularly and not be unreasonable in length.
Investigatory meetings with the employee aren’t hearings
Interviewing the subject of the disciplinary process may be part of an investigation, to get their point of view of what happened. These investigation meetings are not hearings, and you don’t need to allow them to be accompanied to them (unless your own procedure or custom indicates this). Just make sure the purpose and scope of the meeting are made clear to the employee beforehand.
How to deal with reluctant witnesses
Sometimes other employees are reluctant to act as witnesses, perhaps not wanting to get involved, or seen as being a snitch or troublemaker. Sometimes they want anonymity guaranteed, which can be problematic and often impossible, especially in a small organisation.
In these situations you need to balance your duty of care towards all employees including those who perhaps feel vulnerable and threatened, with your responsibilities to conduct a fair investigation, provide the accused employee with sufficient information about the allegations to enable him or her to prepare an adequate defence, and gain enough evidence to support any decision you may make.
Reassure reluctant employee witnesses that you will take any attempt to bully them or threaten them very seriously, and perhaps offer the opportunity to provide witness statements for consideration rather than being cross-examined in a hearing if that is appropriate for the allegation in question.
How much proof is actually needed
Remember that the burden of proof on you is not the same as in a criminal court. You don’t need to prove beyond all reasonable doubt that the employee did what they are accused of. You need to ensure you have reasonable grounds for believing they did, which is not the same. If in the circumstances and with the evidence you have, a reasonable employer would come to the conclusion that the employee was guilty of the misconduct in question, and a fair and reasonable response would be whatever sanction you are proposing, then you don’t need absolute proof.
Disciplinary investigations can be involved and difficult or very quick and straightforward. Remember if resources are limited in your small business, tribunals would take this into account when deciding whether your actions have been reasonable, but reassure yourself by taking advice early on to ensure whatever procedure you are following is fair and reasonable in the circumstances, and to minimise the chances of it ever getting that far.
If you think you may have a disciplinary issue in your business or just want further advice, do get in touch.