Why it is crucial to investigate

Insufficient investigation can, and probably will, result in a finding of unfair dismissal

This week we’re looking at disciplinary investigations, changes to coronavirus support payments and some interesting cases in the news. Read on. . .

Investigation - ‘the act or process of examining a crime, problem, statement, etc. carefully, especially to discover the truth’.

With misconduct dismissals it is easy to fall into the trap of accepting any alleged misconduct at face value, i.e. without a full investigation. Sometimes a separate investigation is unnecessary as the facts are not in dispute and the employer wants to hear what the employee has to say. The investigation then becomes part and parcel of the disciplinary meeting.

However, in the majority of cases it is necessary to undertake an investigation to ascertain the full facts. More often than not the investigation will entail multiple meetings, gathering evidence from a number of witnesses and sources.

Employment tribunals do not expect employers to act as Hercule Poirot, drilling down into every minutiae of the case, but they do expect employers to act reasonably.

It can be quite daunting for an employer to undertake an investigation. Where do I start? Who do I speak to? How do I question witnesses? Do I need to allow a colleague to be present during investigation meetings? How do I present my findings?

There is no definitive guidance as to how to undertake an investigation, but there is an abundance of information on the internet and the ACAS Code of Practice on disciplinary and grievance procedures is a good place to start. It states:

“It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. In some cases this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing.”

At the end of the day it’s common sense. Very few investigators are legally trained. Some larger companies have HR departments with trained investigators, but for many small businesses, the owners/managers take on the role.

As I said earlier - don’t take things at face value. If you can check it out, then check it out. There’s no reason not to, unless of course you don’t have the resources. Tribunals understand that and will make judgments accordingly, but if it’s simply a matter of cross checking what one person has allegedly said to another, the obvious thing to do is speak to both people.

If an employee has done something which is considered gross misconduct and therefore a sacking offence, and the disciplinary policy backs that up, but the employee says, ‘Hang on a minute, X did exactly the same thing and you didn’t sack him’, that would bear further investigation. Did X do the same thing? Did X get the sack or not? Was X treated the same?

If the employee says they did something because they