How to Carry Out a Disciplinary or Grievance Investigation in the Workplace in the UK

As an employer, you may need to carry out disciplinary or grievance procedures in the workplace. However, before deciding if this is necessary, you need to carry out an investigation. Your workplace policy or procedure regarding disciplinary and grievance procedures must be fair. It should follow the Acas Code of practice on disciplinary and grievance procedures, which includes the need for an investigation process. This is especially important because if you face an employment tribunal, it will consider whether you followed the Acas Code. This article will explain what you, as an employer, need to know about carrying out a disciplinary or grievance investigation.

What is a Disciplinary or Grievance Investigation?

A disciplinary investigation is a method for finding out all you reasonably can about a potential disciplinary or grievance issue in the workplace. The investigation allows you to:

• explain to your employee what the potential problems are;
• establish if there is an issue to deal with;
• ensure you treat everyone fairly;
• obtain evidence from all parties; and 
• decide what action to take next. 

The disciplinary or grievance investigation should take place before the disciplinary hearing. You must carry out a reasonable disciplinary investigation. Failure to do so may result in your business facing legal action. This is because any decisions you make as part of your discipline and grievance procedures will likely be unfair if you do not precede it with an investigation.

Steps to Take for Carrying Out an Investigation

When you face a disciplinary or grievance investigation, it is helpful to break it down into steps. You must provide a fair and thorough investigation as part of your requirement to pursue fair and full disciplinary and grievance procedures.

Deciding Who Should Investigate

The person carrying out your disciplinary or grievance investigation should investigate if there is a potential issue. Their job is not to determine if the employee is guilty. Therefore, it is essential that the person you choose:

• is fair and objective;
• adheres to your workplace policies and guidance;
• collects a reasonable amount of information;
• has training on how to carry out a disciplinary investigation;
• gathers evidence from both sides; and 
• respects confidentiality.

The person you choose could be your employee’s direct manager but not where they are the one who has made a complaint or are a witness. They should also not be implicated in any way. Furthermore, they cannot be the same person holding the disciplinary hearing. Where the issue is complex, you may consider asking someone from outside your business to carry it out. 

Is Suspension Necessary?

You may decide that you cannot conduct your investigation with integrity or keep your employees and business safe with your employee present at work. In these circumstances, you can suspend your employee on full pay. Furthermore, if the case involves severe potential misconduct, it may warrant suspension.

You must be sure that suspension is necessary. Otherwise, you may breach the implied term of trust and confidence between you and your employee. Any suspension should be regularly reviewed, and your employee should be allowed to return to work if the review deems suspension no longer necessary.

Considering the Length of Investigation

Investigating a potential disciplinary or grievance issue as soon as possible is essential. However, your investigation does need to be fair and thorough. Different scenarios will dictate extra time for completing an inquiry, as some may be more complex than others.

It may be helpful to detail in your discipline and grievance procedure some guidance on the time length for disciplinary and grievance investigations. If you do not, it will be for you as the employer or the person investigating the matter to decide on the length of it. It is important to communicate this with the employees involved. You may find during the investigation that you require more time. However, you should note that where investigations are delayed, the investigation report should explain why.

Gathering Evidence

You must be sure to gather reasonable evidence as part of your investigation. You may consider your time limits for gathering it and any information you have pinpointing in an investigation plan. When gathering evidence, you must keep written records of how and why you obtain it, including where specific evidence may be missing. When considering the evidence, you must abide by the law regarding data protection and your employee’s privacy rights. 

You should hold an investigation meeting to obtain witness evidence when the evidence is from an employee and the information is not straightforward. If you do, you should take notes and ensure the witness signs confirming they are correct. When holding a grievance meeting, ensure you comply with any rules regarding allowing a companion to be present. For disciplinary meetings, this only applies to those meetings that will result in disciplinary action. Therefore, for the disciplinary investigation meeting, your employee has no right to be accompanied. However, it is good practice to allow them to be.

Making a Decision

At the end of your disciplinary or grievance investigation, you will need to decide whether or not the allegations occurred. To continue a disciplinary or grievance procedure, you must be reasonably satisfied that they did, as this is based on the balance of probabilities.

Compile an Investigation Report

When you are carrying out a disciplinary investigation, you should ideally make a report with all that you have found. This should be shared with your employee.

Make Recommendations

You may have asked someone else to conduct the disciplinary investigation for you. In this case, they might recommend the next action to take.

What Could Be the Decision Resulting From a Disciplinary Investigation?

A disciplinary investigation may result in no action needed by the employer or employee. However, some action will likely need to be taken on most occasions. This could include:

• informal action such as training or mediation;
• further investigation;
• amending internal disciplinary procedures; or
• continuing with a full disciplinary hearing.

Key Takeaways

As an employer faced with an employee who is not abiding by workplace rules, you should conduct a disciplinary investigation to decide your next course of action. Although there is no legal procedure for this, you should follow this article’s guidance to ensure that you carry it out fairly and thoroughly. This will also help you to avoid any repercussions at a later stage. In addition, carrying out a disciplinary investigation will guide you in your next steps, including if a formal disciplinary hearing is required.

If you need help understanding how to conduct a disciplinary investigation, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. Call us today on 0808 196 8584 or visit our membership page.

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