Investigations – Why You Need To Do Them Properly

Dear

Conducting a proper internal investigation is the key to a fair disciplinary process. As an employer, you have an obligation to ensure fair investigations and disciplinary procedures are followed at every point in your business. But if you’ve never done one before, or you don’t yet have a policy in place, it can be difficult to understand what that might look like. So today, we want to talk you through the investigation process, and give you an example of why you need to conduct investigations fairly.

Investigation Process 101

To help you out, we’ve outlined a few basic elements of a fair investigation, so you understand what that looks like, and what you need to do to achieve it.

• Understand that every disciplinary investigation needs to go through a fair and just investigation.
• Follow the recommendations about disciplinary investigations laid out by ACAS. You can find these rules here. If you don’t follow this code of practice, then you could end up paying out much more in compensation, as well as sanctions on your business.
• Make sure that the person running the investigation is not connected in any way to the facts giving rise to the disciplinary charge.
• Ensure that there is no unreasonable delay in carrying out the investigations.
• Consider whether or not you need to suspend the employee involved while you carry out the investigation. You can find out more about suspensions here.
• Where necessary, arrange an investigatory meeting with the employee accused of misconduct, so you can get their side of the story as well.
• Equally, arrange meetings with witnesses to get their account of events and obtain statements where needed.
• Collect any relevant documentation.
• Prepare a set of witness statements and relevant documents to be submitted to a disciplinary hearing. These will also need to be provided to the employee in question before the hearing.
• Be aware that, although there is no statutory right for the employee to be accompanied during investigation meetings, your own policies might give them a right for a union rep or other person to attend proceedings with them.

The Governing Body of Tywyn Primary School V Mr Aplin

In The Governing Body of Tywyn Primary School V Mr Aplin, the constructive dismissal of a primary school Head Teacher was called into question over discrimination worries, since Mr Aplin was openly gay. In events unconnected with the school or it’s students, Mr Aplin became involved with two 17-year-old boys he met via a dating app. When this came to the attention of the Local Authority’s Social Services Department, it arranged a Professional Abuse Strategy Meeting in order to determine whether any criminal offence had been committed, or whether any child protection issues arose. It was decided, in both instances, that they had not. However, the school decided to launch their own investigations, and after a disciplinary hearing, Mr Aplin was dismissed.

Unsurprisingly, Mr Aplin took the case to tribunal, where a number of procedural errors were discovered, including:

• The report submitted of the investigation was neither factual nor objective.
• The report stated that child protection issues were relevant, when it had already been established that this was not the case.
• Despite multiple requests, Mr Aplin was not supplied with the Professional Abuse Strategy Meeting minutes or police report, both of which had been relied upon during the investigation.
• The school failed to give Mr Aplin sufficient notice of his entitlement to legal representation at the appeal hearing.
• They also failed to consult Mr Aplin about further date changes to the appeal hearing.

Ultimately, the EAT found there the School’s conduct leading up to the dismissal amounted to breaches in implied trust and confidence, and that Mr Alpin’s appeal was valid. The school was given the opportunity to remedy this, but after more breaches occurred, Mr Aplin resigned and claimed constructive dismissal. This case is an example of a mishandled investigation, and it cost the school a lot to manage.

How Can You Stay On the Right Side?

Of course, it’s one thing to have a policy in place, and quite another to understand what it means and how to follow it properly. If you’re having issues with staff, investigations or disciplinary procedures, it doesn’t hurt to get a little help and advice from the employment law experts.

At Herefords, we offer hands-on, practical advice and guidance around all elements of employment law. Our service is all about guiding you through the minefield, helping you to understand the law and how it applies to your business, including any new changes that come in. And thanks to our new Employment Law Retainer, you can be confident that your key HR decisions and advice are compliant and appropriate. You can find out more about our employment law retainer by clicking here.

Or for more information on handling issues in the workplace, you can get in touch with us and book your free consultation.

Best,

Zahir Mohammed

Employment Solicitor
0203 669 2216