Clued up

Employee misconduct can cover many issues ranging from minor misdemeanours such as poor time-keeping, to potentially criminal matters such as major fraud. It is understandable that employers will want to take robust action to tackle misconduct. However, regardless of the severity of the misconduct, one crucial aspect of the disciplinary process which should never be overlooked is investigation. But what are the key dos and don'ts for employers to be aware of when handling investigations? On every occasion where an employer becomes aware of potential misconduct, an initial fact-finding exercise should be carried out to establish the background to the allegations. This step should be carried out as quickly as possible to ensure that crucial evidence is not lost. Once the background details are known, the employer should decide on a course of action appropriate to the severity of the alleged misconduct. For less serious matters, an informal meeting to discuss the reasons for the behaviour and agree guidelines for improvement may be enough to resolve the situation. This can be followed up with a warning letter stating that disciplinary action will follow if the employee's behaviour does not improve. For more serious matters, a detailed investigation may be necessary before deciding whether the situation should be progressed to formal disciplinary proceedings. Depending on the circumstances, it may be necessary to suspend the employee while this stage of investigation is taking place. Before commencing any formal disciplinary investigation, employers should ensure that they are familiar with the provisions of the Acas Code of Practice on Disciplinary and Grievance Procedures ('the Code'), which provides guidance on carrying out fair disciplinary investigations. It is important that employers take all necessary steps to comply with the Code as any unreasonable failure to do so may render any subsequent dismissal unfair and can increase the amount of compensation an employment tribunal may award by up to 25%. It is also important that employers act in compliance with their own disciplinary procedures, to the extent that these are compatible with the Code. Wherever possible, the person who conducts the investigation should not be the same as the person responsible for dealing with any subsequent disciplinary or appeal hearings, to avoid arguments of bias. This may not always be possible for smaller employers, but employment tribunals will expect larger employers to operate separate investigation and disciplinary processes. The level of detail required for a fair investigation will depend on the particular circumstances; employers should beware of adopting a one size fits all approach. In some cases, investigation may simply take the form of collating documentary evidence already available. In others, a formal investigation hearing may be necessary to establish all relevant facts. In the case of Sainsbury's Supermarkets v Hitt (2003), the Court of Appeal held that employment tribunals should not be tempted to substitute their view of what a reasonable investigation would have been in a particular case. Instead, they should ask whether the employer's actions were within the "band of reasonable responses". However, as a minimum, employers need to ensure that, by the end of the investigation stage, the information gathered is sufficiently detailed to determine whether further disciplinary action is necessary and enable the employee to fully understand the allegations made against him/her. When gathering evidence during an investigation, employers should ensure that they act even-handedly and look for evidence in the employee's favour as well as against them, particularly where serious consequences might result, such as dismissal or criminal investigation. In the recent case of Salford Royal NHS Foundation Trust v Roldan (2010), the Court of Appeal held that an employer faced with a conflict of evidence does not always have to decide who it believes. It can decide that the difference is merely one of perception and that both parties are telling the truth as they see it. Alternatively, it can decide that the conflict cannot be resolved, in which case the accused employee should be given the benefit of the doubt. If, following an investigation, an employer decides that further disciplinary action is necessary, the next step should always be a formal disciplinary hearing – the findings of an investigation will never be enough to justify an employer issuing a disciplinary sanction such as a warning or dismissal, regardless of the strength of evidence. To ensure they are complying with the applicable legal requirements in this area, employers are advised to review their investigation procedures to ensure they meet the requirements of the Acas Code, and to regularly brief managers as to how to handle investigation and disciplinary matters correctly. Danielle Ingham is a solicitor at law firm Pinsent Masons: www.pinsentmasons.com