Managing employee relations effectively is crucial for maintaining a harmonious, productive workplace. Occasionally, issues may arise that require a disciplinary investigation.
In this guide we discuss how to carry out a disciplinary investigation that is thorough and fair and follows the Advisory, Conciliation and Arbitration Service (ACAS) procedures.
What is the purpose of a disciplinary investigation?
The purpose of a disciplinary investigation is to gather and evaluate evidence to decide on the next steps.
The investigation process ensures that decisions are based on facts and evidence, rather than assumptions or incomplete information.
By following a structured investigation process, employers can apply the same standards and procedures to every case. This consistency is vital for upholding the principles of fairness and equality in the workplace.
Conducting thorough and fair employee investigations reduces the risk of legal claims related to unfair dismissal and discrimination.
Why follow the ACAS Code of Practice?
The ACAS Code of Practice on disciplinary and grievance procedures sets out minimum standards for employers to follow. Although these procedures are not legally binding, they are used in employment tribunals to help determine the outcome of cases.
Employers can follow their own investigation procedures or the investigation procedures in the ACAS Code of Practice. In any case, it is advisable that an employer’s procedures are based on those set out by ACAS, as deviating from the guidelines can make it difficult to defend a case in an employment tribunal.
What should an employer do first?
The first step is to evaluate the incident or complaint to ascertain if it requires formal investigation or if it can be resolved informally. To make this decision, consider the nature of the issue, the severity, and any previous related incidents.
Collect preliminary information to understand the background of the case and speak briefly to relevant parties to get a high-level view. Then identify any immediate evidence such as emails, reports, or witness accounts that are readily available.
Next, appoint an investigator. Ideally, the investigator should be someone who has not been involved in the incident so there is no conflict of interest. This may be a manager or supervisor from a different department or an HR representative.
Clearly communicate to the investigator what they are expected to do and ensure they understand the importance of impartiality and thoroughness.
Provide any necessary training to support the investigator. At Praxis42 we offer HR Investigation Training for managers and supervisors. The course provides those who might be responsible for carrying out investigations with a thorough understanding of how to plan, conduct and follow up and investigation, and what to consider at every stage of the process.
What are the stages of a disciplinary investigation?
Here are steps an investigator needs to take in line with ACAS procedures.
1. Plan the investigation
Clearly define the objectives of the disciplinary investigation. The objectives guide the entire process, ensuring that the investigation stays focused and relevant.
For example, the objective might be to determine whether the person being investigated has breached a particular aspect of the organisation’s lateness and time off policy.
Before you carry out an investigation consider:
- What specific policies or procedures are alleged to have been violated.
- Possible outcomes of this investigation (for example, disciplinary action, policy review, conflict resolution).
- Whether there any legal implications or compliance issues to be considered.
Define the scope of the investigation
Defining the scope of the investigation is essential to ensure all relevant aspects are covered.
Identify:
- What needs to be investigated: specific allegations, incidents, or behaviours.
- Who will be interviewed: complainant, accused, witnesses, supervisors, and any other relevant parties.
- What evidence needs to be gathered: documents, emails, CCTV footage, physical evidence, and any other pertinent materials.
Set a timetable
Establish a reasonable timeline to complete the investigation.
An investigation at work should not take longer than necessary due to the stress it can cause those involved and the impact on productivity. It should also take place as soon as possible while people’s memories are fresh and to reduce the likelihood that evidence will be tampered with.
However, a timetable must be realistic, which depends on the availability of witnesses and the complexity of the matter.
Write a list of key questions
Formulating a list of questions is a vital part of planning an investigation at work. These questions should be designed to uncover the truth and gather comprehensive information about the incident.
Questions should be open-ended, with the objective of discovering who, what, when, where, why and how.
Key areas to explore:
- Context and background of the incident.
- Specific details of the allegations.
- Behaviour and actions of those involved.
- Impact of the incident on the workplace environment.
Example questions for interviews:
For the complainant:
- Can you describe the incident in detail?
- When and where did the incident occur?
- Were there any witnesses present during the incident?
- How has this incident affected you and your work?
For the person under investigation:
- What is your account of the incident?
- Were you aware of any witnesses to the incident?
- Can you provide any documents or evidence to support your version of events?
- Have you had any prior interactions or conflicts with the complainant?
For witnesses:
- What did you see or hear during the incident?
- Where were you located at the time of the incident?
- Did you observe any interactions between the complainant and the accused before or after the incident?
- Is there anything else you believe is relevant to the investigation?
For supervisors:
- Were you aware of any issues or conflicts between the complainant and the accused prior to this incident?
- Have there been any similar complaints or incidents involving the accused?
- How do you typically handle complaints or conflicts within your team?
4. Manage an investigation meeting
The purpose of a disciplinary investigation meeting at work is to gather information, and it should not be confused with a disciplinary hearing.
Under employment law, an employee does not have the right to be accompanied to a meeting which is to gather evidence that could result in a disciplinary, but they do have the right to be accompanied to a disciplinary hearing.
An investigation meeting at work must be private and confidential to maintain integrity and encourage honesty. The purpose of the meeting should be explained to the employee under investigation.
During the meeting ask questions without being confrontational and ensure the employee can provide their account with any supporting evidence. Answers must be recorded, including any refusal to respond.
5. Conduct the investigation
Collect all relevant documents, emails, CCTV footage, and other tangible evidence. Meticulous documentation is essential to protect the organisation against any future legal claims.
Employee investigations often involve gathering sensitive information. This information must be stored securely and access to sensitive data must be restricted and shared only with those directly involved in an investigation and disciplinary.
Conduct interviews with the complainant and any witnesses, following the same best practices as described above for the investigation meeting.
6. Analyse the evidence
Start by reviewing all the evidence by:
- Evaluating the reliability of the evidence sources by considering the credibility of witnesses based on their relationship to the parties involved, their position, and their history.
- Being aware of potential biases and motives of those providing evidence. This includes personal relationships, grievances, or conflicts of interest.
- Evaluating the detail and specificity of the evidence. More detailed and specific evidence tends to be more reliable.
- Checking for consistency within the evidence. Contradictions or inconsistencies should be noted and investigated further.
- Looking for corroborating evidence. Multiple pieces of evidence supporting the same fact increase credibility.
- Looking for patterns or trends in the evidence. Repeated behaviours or consistent statements across different sources can indicate a stronger case.
- Re-interviewing witnesses or gathering additional evidence if there are gaps or inconsistencies.
7. Prepare an investigation report
Document your findings and analysis in a comprehensive report. This should include:
- An introduction outlining the purpose and scope of the investigation.
- A detailed summary of the evidence gathered, including key witness statements and physical evidence.
- An analysis of the evidence, highlighting significant findings and how they relate to the allegations.
- Conclusions based on the evidence, indicating whether the allegations are substantiated or not.
Attach supporting evidence to your report, clearly cross-referenced to your analysis.
Note that an investigator must not conclude a report by recommending a specific sanction, only that ‘formal action’, ‘informal action’ or ‘no action’ should be taken.
What happens after an investigation?
The decision-maker (who may be the employer, a senior manager or an HR manager), should decide how to proceed next based on the investigation report.
Once a decision has been made, a disciplinary outcome letter should be sent to the employee who was investigated to inform them of the outcome. On the ACAS website there are disciplinary outcome letter templates for employers to use.
These are some possible outcomes:
Formal action
Formal actions are official responses documented in an employee’s record and often follow a structured procedure.
Examples include:
- Written warning: An official letter outlining the misconduct, expectations for improvement, and consequences for failing to improve.
- Performance improvement plan (PIP): A formal plan with specific goals and timelines for improvement, monitored by management.
- Suspension: Temporary removal from duties, either with or without pay, as a consequence of the misconduct.
- Demotion: Reduction in rank or job level as a result of serious misconduct.
- Termination: Dismissal from the organisation due to severe or repeated misconduct.
Informal action
Informal actions aim to correct behaviour without formal disciplinary proceedings.
Examples include:
- Verbal warning: A conversation where the manager addresses the misconduct and expectations for future behaviour.
- Coaching or counselling: Guidance provided to help the employee understand and correct their behaviour.
- Mediation: Involving a neutral third party to resolve conflicts or misunderstandings between employees.
- Training or development: Providing additional training to address gaps in knowledge or skills that led to the misconduct.
No action
In some cases, an investigation might conclude that no disciplinary action is necessary.
Examples include:
- Insufficient evidence: The investigation does not find enough evidence to support the allegations.
- Misunderstanding: The incident is found to be a result of a misunderstanding or miscommunication rather than misconduct.
- No violation: The employee’s actions are determined to be within acceptable limits and did not violate any policies or rules.
- Corrective measures taken: The employee has already taken steps to correct the behaviour, making formal or informal action unnecessary.
Each of these outcomes should be considered carefully based on the specifics of the case and in line with the organisation’s disciplinary policies and procedures.
HR investigation and disciplinary training
Investigation Training equips managers and supervisors with the skills they need to conduct thorough, fair and consistent employee investigations.
Training covers a range of essential topics, including the fundamentals of conducting interviews, gathering and preserving evidence, and documenting findings accurately. Participants learn about the legal considerations involved in a disciplinary investigation, such as data protection, confidentiality, and the rights of the individuals involved.
By the end of the course, participants will have the knowledge to manage investigations at work effectively, minimise risks, and foster a fair and respectful workplace environment.
Find out about HR Investigation Training on our website or contact us on 0203 011 4242/info@praxis42.com
Tom Paxman
Managing Director (Digital)
