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Investigations

When issues arise at work, be they a grievance or a disciplinary, the most important part for an employer is a thorough investigation. These form the bedrock of the matter, showing what is likely to have happened and this helps an employer determine what action is appropriate, or reasonable to take in the circumstances.

The procedure for disciplinaries and grievances should be outlined in your policies and procedures, setting out the process you should follow in either situation. In order to mitigate the risk of a claim, employers should be thorough, fair and even-handed in their approach to getting to the heart of the issue.  

Our specialist Employment Team can guide you through the process of investigating a disciplinary and/or grievance matter, minimising the risk to your business, whilst protecting the employee’s rights in the workplace, where relevant.

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What is an Investigation?

It is essential that everyone is treated fairly and with respect throughout the course of the investigation. Whilst employers only have a duty to investigate what is reasonable in the circumstances, the safest approach is to err on the side of caution, even where an individual has admitted a degree of guilt in a disciplinary matter.

In such a circumstance, it would be reasonable for the employer to consider whether there are any mitigating factors. The investigation itself should frame the allegation or circumstance and then take steps to identify what information is needed to assist in forming an outcome. The outcome of the investigation should help the employer to determine what the next steps should be.

When are Investigations Needed?

Investigations should ideally be carried out as soon as possible after a situation comes to light. The investigating officer assigned to the matter should be independent of the situation, to ensure fairness.

Is Suspending an Employee Necessary?

This is a question that an employer should ask and carefully consider before suspension because it is important to not suspend as a ‘knee-jerk’ reaction to the issue. Equally, a suspension should not be a punitive measure and is more pertinent where there are serious allegations which are damaging to the business, or where there is a risk of an individual tampering with evidence or seeking to influence witnesses. Suspension should always be kept under review and should not be for any longer than is necessary.

Witnesses in Investigations

Witnesses can play a key role in investigations so, where relevant, you should take statements in addition to other evidence that may have been collected. Collating witness statements can be time-consuming but can have a huge impact on the situation. However, you should bear in mind the duty of confidentiality at all times. Typically, in a disciplinary process the individual who is being investigated will be provided with the evidence, but it may be necessary in certain situations to anonymise the witness statements.

Recommendations

Once an investigation is concluded, employers should consider the next steps. In a grievance situation, the findings can be discussed, and a decision will need to be made as to whether the grievance is upheld, partially upheld or rejected.

If upheld, what actions should be taken to remedy the situation? In a situation of bullying, for example, it may be appropriate to take formal action such as commencing a disciplinary process, or informal action such as mediation or training may be considered.

In a disciplinary situation, the investigator’s sole purpose is to determine whether there is a case to answer. If not, then the process ends. If there is, then the recommendation is solely that the matter should proceed to a disciplinary hearing. There should be no consideration of culpability or appropriate outcome in order to avoid compromising a fair disciplinary hearing.

From leading investigations to collecting witness statements, to suggesting reasonable outcomes and advising on best practice, our Employment Team has significant expertise and an excellent reputation for tenacity in representing clients in respect of disciplinary and grievance procedures, with a view to mitigating  any risk of a (meritorious) claim being brought. We can meet with you for a confidential meeting with a member of our team to discuss the options available to you as an employee or a business owner.

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