If an employee faces allegations at work, you may need to conduct a disciplinary investigation into the matter.
Every employer must follow a fair disciplinary procedure to discover whether the allegations are true or not. Failing this could lead to hefty compensation, reputational damage, and business losses.
In this guide, we'll look at what a disciplinary investigation is, what the law covers, and how to follow a fair procedure during disciplinaries.
What is a disciplinary investigation?
A disciplinary investigation is a procedure used to look into allegations of misconduct or improper behaviour.
The investigation helps straighten out the facts when it comes to disciplinary issues. From these findings, employers can decide whether to take disciplinary action or not.
You don't always have to hold a thorough investigation; and they doesn't always lead to a formal disciplinary hearing. But the main point of them is to establish whether the employee concerned has a case to answer to or not.
When do you hold a disciplinary investigation?
When an employer decides to hold a disciplinary investigation, it's not clear whether an allegation is true or not.
An investigation can be carried out for alleged misconduct like:
Whether the employee involved admits to the claim or not, their employer will still need to hold an investigation. It'll help collect evidence, witnesses, and influence the employer's decision.
How long is a disciplinary investigation?
There is no legal set length for disciplinary investigations. However, there are certain requirements that the investigation should meet.
Employers should carry out investigatory procedures as swiftly as possible. They shouldn't elongate them without good reason. If you do, employees end up feeling anxious for no good reason.
Is there a law that covers disciplinary investigations?
There is no specific law that covers disciplinary investigations. However, there are relevant governing guidelines that you should follow
Employers must conduct their disciplinary procedure based on the Acas Code of Practice on Disciplinary and Grievance Procedures.
Acas Code of Practice on Disciplinary and Grievance Procedures
The Acas Code of Practice sets out practical advice on how to carry out an investigation into misconduct or behaviour concerns.
Every employer should conduct a fair and reasonable investigation. An employment tribunal (ET) will determine whether your procedures adhere to the Code or not. If they don't, you could face significant consequences.
For example, if an employee was unlawfully fired during the investigation, they could raise this as an unfair dismissal claim. If the tribunal find your disciplinary processes were unfair, you could be forced to pay compensation awards.
How to carry out a disciplinary investigation
When it comes to disciplinary issues, your own procedure must follow fair investigatory stages.
That way, you'll be able to discover the truth about allegations of misconduct or improper behaviour. This leads to resolution and harmony within the workplace.
Let's look at ways to carry out a disciplinary investigation:
Informing the accused employee
The first step you need to take is informing the employee about the allegation.
Employers should explain why they're being investigated; tell them in person and through writing. You should also highlight what steps will follow in accordance with disciplinary procedures; the first step being the investigation.
Remind them your procedure isn't used to 'prove guilt'. You have a duty to get to the bottom of work-related allegations.
Choose your investigating officer
The next step involves choosing your investigating officer. They're usually senior managers who have no connection to the case.
Employers should consider the following:
- The investigator should not be personally involved in the incident.
- The investigator shouldn't conduct the subsequent disciplinary hearing.
- The investigator should have appropriate training on conducting the investigation.
Sometimes, an employer might not have enough suitable managers to appoint as investigating officers. You could choose an external specialist instead. They'll aim to hold objectivity and integrity throughout your procedure.
Gather physical evidence
The investigating officer should then start gathering evidence. Physical evidence can come in all shapes and forms. For example:
- Emails and correspondence.
- CCTV footage.
- Phone and video-call recordings.
- Employment records.
- Computer records.
The investigating officer should note whether any other evidence is missing, as well as the reasons behind it. They must comply with GDPR, specifically the legal right to privacy.
Sometimes, an investigator may recommend searching the accused employee's possessions. This should only be done in exceptional circumstances and with a clear, legitimate reason. The accused employee must agree and be present at this time.
Deal with potential witnesses
The investigating officer may need to deal with potential witnesses. They should explain how their involvement and evidence is needed for the case.
Witnesses may wish to remain anonymous during the investigatory interview. But this cannot be guaranteed. It also puts the employee involved at a disadvantage; which can be unethical, especially if they're proven to be innocent.
Anonymous witness statements can be used if the employee has a genuine fear for their safety, or those close to them. Investigators could then be asked to hide their names during the meeting and relevant documentation.
Start the disciplinary investigation meeting
The investigating officer or panel may need to meet the accused employee at some point. This is usually done through a disciplinary investigation meeting.
The investigator or panel will usually direct these investigation meetings. They'll discuss certain matters related to the case which need to be addressed.
After this, the accused employee will need to approve a copy of their statement. Any changes made to this should be recorded after the disciplinary investigation meeting.
Decide on the right to be accompanied
Employees usually don't have the statutory right to be accompanied during disciplinary investigation meetings. (But they do during disciplinary hearings). For example, bringing a trade union representative.
However, it's good practice to allow accompaniment during your investigation meeting. Employers must make reasonable adjustments for employees with disabilities - physical or mental. This could mean allowing them the right to be accompanied by a supporting person.
Make sure you highlight who's allowed to be accompanied during the investigation meeting. And who stands as a suitable representative. For example, the person could bring a manager, spouse, or legal representative.
Finalise the disciplinary sanction
After the investigation meeting, the investigating office or panel will finalise their decision on sanctions. This normally follows two outcomes.
The first outcome is no action. Meaning, the case has found that the person is not guilty. The employer should share this in writing to them. Or you might recommend that they take further training to minimise future cases.
The second outcome involves taking action. This means the investigator has found evidence that finds the allegation to be true. The next step involves a formal disciplinary hearing; all relevant parties must attend this meeting. which the employee must attend.
At the end of the disciplinary hearing, the panel will decide whether disciplinary action should be taken or not.
Can you suspend an employee during the investigation?
Yes, you can suspend an employee during an investigation if it's necessary.
Employers may suspend them because they believe the employee could destroy evidence; or influence witnesses and colleagues. They should have proof for this, that’s free from biases.
Suspended employees are legally entitled full pay during this time. Suspension should be kept as short as possible; and only used as a last resort. Employers should also consider alternative methods first, like a temporary transfer.
It's important for the employer to remind the person that suspension isn't a punishment. Rather, it's a necessary step towards resolving the alleged misconduct or improper behaviour.
Is a disciplinary investigation the same as a disciplinary hearing?
No, they aren't the same. In normal circumstances, the investigation happens during the disciplinary procedure. This investigation helps establish whether the accused person is involved in the alleged incident or not.
A disciplinary hearing is the formal meeting where evidence found in the investigation is discussed. The employee concerned is given a chance to present their side regarding the evidence and finding of the case.
Get expert advice on disciplinary investigations with Peninsula
Whatever allegations are raised, employers must follow proper procedures to manage them. This is especially important during a disciplinary investigation process.
Procedural fairness is crucial as it helps resolve matters professionally and practically. If you neglect the rules, you could face paying fines, rehiring employees, and business losses.
Peninsula offers expert advice on disciplinary investigations. Our HR team offers 24/7 HR employment advice which is available 365 days a year.
Want to find out more? Seek advice from one of our HR consultants. For further support, call our telephone number 0800 028 2420.
