Tips for investigating misconduct in the workplace

Investigating an employee’s alleged misconduct is one of those challenges that many employers dread. It may seem like a negative process that can drain your time and energy, but it is a necessary evil.

Whether you have to investigate claims of theft, fraud, bullying or harassment, it is essential that you avoid knee-jerk responses and conduct a thorough investigation that allows you to consider the matter fully before deciding whether disciplinary action is necessary.

A poorly conducted investigation, on the other hand, can lead to some very costly consequences.

Here are 6 key points that you need to consider.

1  Choose an Investigator
Employers must decide who should carry out the investigation. Generally, it will be the line manager or someone from HR. It is considered best practice that one person who conducts the investigation and another should conduct any subsequent disciplinary or appeal hearings. However, this may not always be possible. Speak to an Employment Law Adviser who can help you decide who is best for the investigation.

If possible, the investigating officer should have experience in carrying out these types of investigations and be available for the entire duration but again, if this is not possible, your Employment Adviser can offer you guidance.

2  Understand the Allegations
The investigator will need to know what allegations need to be investigated, what issues must be explored and what evidence needs to be collected.

In cases of serious allegations of misconduct, the employer may need to inform external agencies, such as the Health and Safety Executive or the police.

3  Consider Suspension
Consider whether the employee should be suspended on full pay whilst the investigation is being completed. This action should only be taken in certain cases, for example, if there is a risk that the employee could tamper with evidence or continue to pose a risk to your business.

It is critical to make sure that the employee is aware that this is a temporary measure and it is not a disciplinary sanction.

Remember, the length of an investigation will depend on the complexity of the issues that need to be explored, but this suspension should be as brief as possible and should be kept under review.

4  Conduct the Investigation Meetings
The investigating officer may need to hold investigation meetings with other employees that they believe have useful information about the allegations, as well as with the person who is accused of misconduct.

Investigation meetings are not easy. It will be particularly difficult for the person who raised the complaint or the person who is under investigation. Some witnesses to the alleged misconduct may be reluctant to speak as they fear some form of backlash. Therefore, investigating officers must be skilled in putting people at ease and extracting all the necessary information.

Employees do not have a legal right to be accompanied in an investigation meeting. However, some employers do state in the Contracts of Employment that they may be accompanied by, for example, a work colleague or trade union representative.

The investigating officer should ask questions that challenge the credibility of the information being given, but they should not frighten the interviewee or put them off answering more questions. They should listen attentively and look out for anything that the person is not being open about.

5  Gather Evidence
In many cases, it is difficult to ascertain what happened as often only the alleged perpetrator and alleged victim were present when the incident occurred. However, investigating officers must persevere to establish the facts and collect witness statements, or a signed copy of the notes from an investigation meeting, written documents (e.g. attendance sheets) and physical evidence (e.g. CCTV).

In very exceptional circumstances, investigators can carry out a search of an employee’s desk, locker or belongings. However, there must be a legitimate reason for doing so. Always seek advice prior to carrying out a search.

It is important that the investigation considers evidence which both supports and challenges the allegations. Each piece of evidence must be analysed, exploring what it shows, whether there are any doubts about its reliability, how it fits in with other evidence and if further evidence is required.

6  Deliver Your Report
An investigating officer might need to draft a report of their findings, but it is not always necessary. The investigating officer should suggest what the next steps should be, for example, disciplinary action, mediation, counselling or no further action. Your Employment Law Adviser can help advise whether disciplinary action should follow.

Contact Ellis Whittam for practical advice on these investigations.   

Director of Legal Services

James Tamm

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