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Sarah Everton

Head of Employment Law

01782 525012 sarah.everton@myerssolicitors.co.uk

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Investigating employee misconduct: how to get it right

13th May 2022

Investigating employee misconduct: how to get it right

‘Being dismissed for misconduct can have a devastating impact on an employee’s future job opportunities. Before fairly dismissing someone for misconduct, employers must be able to show that they reasonably believe that the employee is guilty of misconduct.

‘A fair investigation is the cornerstone of a fair process and for establishing that it was reasonable to believe that the employee was guilty.’ says Sarah Everton, a solicitor in the employment law team with Myers & Co. She explains how to ensure you get investigations right.

First things first, check your procedure

Employers should have a disciplinary procedure that complies with the Acas Code of Practice on disciplinary and grievance procedures. If the dismissal results in an employment tribunal claim, the tribunal will assess whether you followed the code. If not, the dismissal is likely to be unfair and damages awarded to the individual may be increased by up to 25 per cent. If your procedure goes beyond the requirements of the code or the law, for example by allowing employees to be accompanied at investigation meetings, the tribunal will most likely expect you to comply with your procedure.

Who investigates?

Consider who will play which role in the process. Your policy may address this. The investigator must appear impartial, so this would usually rule out anyone who is likely to be a key witness in the investigation or who could be embroiled in the allegations. Preferably, different individuals should carry out the investigation and the disciplinary hearing. Bear in mind that you also need to keep a more senior individual out of the process so that they can remain ‘untainted’ to hear any appeal. This can be tricky in smaller organisations, particularly if the employee is in a senior role. We can advise you on how to deal with this and whether it would be worth bringing in an external investigator.

What is a reasonable investigation?

A tribunal will expect you to carry out a reasonable investigation promptly. What is reasonable will depend on the circumstances. A misconduct dismissal can end a career or result in an employee losing their right to work in the UK. The more serious the allegation and the more serious the consequences for the employee, the more thorough the investigation should be.

The investigator must keep an open mind; they are not building a case against an employee, rather they are seeking to establish the facts. This means exploring issues that are in the employee’s favour, not just those that support the allegations. A difficult balancing act for an investigator is making sure that the investigation is thorough enough but does not drag on for months and take them down irrelevant rabbit holes. In some cases, it may be enough for the investigator to just gather evidence without speaking to any witnesses. In most cases, it will be necessary to meet with the employee.

As a rule of thumb, if the employee is ‘caught red handed’, minimal investigation should suffice. Even if an employee admits the misconduct, it may still be appropriate to investigate. For example, an investigation may be needed if it is suggested that the employee’s line manager condoned their behaviour, or the employee is vulnerable.

Who to speak to?

If there were potential witnesses to the alleged misconduct, the investigator should consider speaking to them, including any suggested by the employee. The investigator may need to speak to individuals outside the organisation. Uncomfortable as this may be, this could involve speaking to clients, customers or suppliers. We can advise you on whether this would be necessary and how to protect confidentiality.

Health issues

Employees may point out that their behaviour was due to a health condition or a side-effect of medication, for example aggressive or erratic behaviour. Even if this seems implausible to the investigator, it should be investigated usually by referring the employee to an occupational health specialist. If not, the tribunal may find that the investigation was not thorough enough and the dismissal was unfair. The employee could also have a successful disability discrimination claim.

Investigation report

It is good practice to produce an investigation report for the disciplining manager to consider. The report should reach conclusions on what facts have been established and which have not. The investigator should recommend if it should proceed under the disciplinary procedure or not. It is important to keep distinct the role of the investigator and the disciplining manager. This means that the investigator should not recommend any particular sanctions.

How we can help

There are no hard and fast rules on getting an investigation right. Given the importance of an investigation, we recommend getting in touch. We can advise you on the process, planning an investigation, the scope of the investigation and drawing up a report to minimise the risk of a successful claim for unfair dismissal.

For further information, please contact Sarah Everton in the employment team on 01782 525012 or email sarah.everton@myerssolicitors.co.uk.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.