Table of Contents
If you need to address workplace misconduct, you will likely need to follow a disciplinary procedure. Disciplinary procedures must be fair and mirror the Acas Code of Practice on disciplinary and grievance procedures. As part of the disciplinary process, you must investigate the alleged issue with your employee. If you fail to investigate the matter, this could lead to an unfair dismissal claim in an employment tribunal. Hence, this article will explain what you, as an employer, need to know about the investigation process for a disciplinary procedure in England.
What is a Disciplinary Investigation?
A disciplinary investigation is an essential part of your disciplinary procedure. It is an opportunity to examine the allegations against an employee and gather evidence to establish the facts. The results guide you toward whether you need to take action.
You may need to carry out a disciplinary investigation where, for example, there are allegations against your employee for:
- destructive behaviour, such as rudeness;
- poor time-keeping;
- harassment or bullying; or
- being under the influence of drugs while carrying out their work.
You should carry out an investigation as part of your disciplinary process even where your colleague admits to the allegation to ensure that you treat all involved relatively.
What is the Role of the Person Carrying Out the Investigation?
When you conduct an investigation, your role is to discover if there is an issue to deal with. You should ensure the person you chose to investigate the matter is not the same person who will carry out the disciplinary hearing. That is to say, the investigator should not be linked to the investigated problems and should have received training in carrying out a disciplinary investigation. Usually, the employee’s direct manager is the most suitable person to carry out the investigation.
When conducting the investigation, the investigator should:
- be fair;
- be objective;
- follow any guidelines about investigating in your disciplinary policy;
- gather a reasonable amount of information;
- obtain evidence for all sides; and
- keep the information confidential.
Call 0808 196 8584 for urgent assistance.
Otherwise, complete this form and we will contact you within one business day.
What is the Length of a Disciplinary Investigation?
There is no set length regarding how long to spend on a disciplinary investigation. However, it should be reasonable in all circumstances. Sometimes a situation is complex and requires extensive evidence. However, in terms of your investigation, it is essential that you:
- carry it out as quickly as you can; and
- be fair and thorough when doing so.
It is good practice to set an estimated time to spend on a disciplinary investigation as part of your disciplinary policy. You can do this if you require more time due to the circumstances. However, if you need more time, your should:
- explain why you need more time; and
- include this in the written investigation report.
Gathering Evidence
The investigation process for a disciplinary procedure will require you to gather as much evidence as possible. There are many types of evidence that you may gather as part of your disciplinary investigation. For example, you might gather:
- written statements from employees and customers;
- emails;
- documents on computers;
- phone recordings; and
- CCTV evidence.
Your investigation plan will provide guidance about what you may need to obtain and should detail if any pieces of evidence are time-limited.
You may also find that as the investigation proceeds, you become aware of further evidence you require that your investigation plan does not detail.
It is essential to gather evidence and that you do so within the law. This means, for example, that you follow the:
- data protection rules;
- the terms in your employment contracts; and
- your employee’s right to privacy.
Any evidence obtained should be accompanied by a written record of how you gathered it. You may find you need an investigation meeting to gather evidence. Whilst there is no legal obligation for you to allow your employee to be accompanied to this meeting as there is in the disciplinary meeting or hearing, it is good practice to allow them to be accompanied.
Key Takeaways
A disciplinary investigation forms a crucial part of any disciplinary procedure. It allows you to see if there is a case for your employee to answer about the allegations made and will enable you to gather evidence to support this, guiding you further in the disciplinary process. You should also follow other legal rules when handling evidence, such as data protection laws and confidentiality and privacy.
If you need help understanding the investigation process for a disciplinary procedure in England, 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. So call us today on 0808 196 8584 or visit our membership page.
Frequently Asked Questions
You should ensure that the person carrying out your disciplinary investigation is not involved in the allegations. Furthermore, the investigator should be trained to carry out the role.
There is no set time for a disciplinary investigation, although you may detail a guide on this in your disciplinary procedures. However, the time spent investigating should be reasonable in all the circumstances.
We appreciate your feedback – your submission has been successfully received.
