Investigating a disciplinary or grievance incident is a critical and often sensitive task for a manager. The findings of a fair and comprehensive investigation will be the cornerstone in deciding if any further action needs to be taken against an employee, so shouldn't be underestimated.
An inadequate, or worse still, no investigation can expose a business to a variety of risks including employment tribunals and civil actions. In extreme cases the poor handling of an investigation can also result in a workforce developing a lack of confidence in the management of the business as a whole.
While the ACAS Code of Practice on Disciplinary and Grievance Procedures provides a framework for handling workplace issues and establishing the facts by way of an investigation. We wanted to give an overview of the important practical steps to consider should you ever need to conduct a workplace investigation or be in the role of an investigating officer.
What incidents may require an investigation?
Investigation Policies and Procedures.
The parameters and process of an internal investigation should ideally be detailed in your business policies or employee handbook, as it's important that all parties involved in the investigation are aware of the procedure and what to expect.
For example, in relation to an employee complaint, your company Grievance Policy may advise:
For most employees it will be daunting to be involved in, or the subject of, an investigation, so having the process mapped out in your company policies will help clarify the process and let them know what to expect.
Ensure an Impartial Workplace Investigation.
Wherever possible the person tasked with conducting the investigation should not have been involved with the issue being investigated. The investigating officer's role is that of a fact-finder, and when selecting an investigator, it should be someone who can collect the relevant evidence without the burden of having previous knowledge of the issue.
An employee, manager or supervisor without prior knowledge of the issue can be difficult to select in smaller businesses. So, in these cases the priority should be selecting an individual that was not directly involved in the issue and who will not be involved in any decision making on future stage (formal hearings, appeals etc.).
Once selected and briefed, the investigator should then be left to consider what information needs to be obtained to gain a full understanding of the issue and what has occurred.
Conducting an Investigation Interview.
Once the investigating officer has an idea of who they wish to interview they should invite them to a meeting as soon as possible. If practical, it will be helpful to also have an independent notetaker in the interview whose only role is to record what is discussed at the meeting. Often this will be a representative from HR, but any individual who is able to take confidential notes will allow the investigator to concentrate on their questions and the interviewee's responses.
The notes of the interview should be recorded in a standard format and having a workplace investigation interview template prepared which can also be signed by the interviewee will certainly assist this. For the investigation interview itself it's recommended that you:
Whilst evidence can be obtained from various sources, witness interviews are usually the most important source of information for the investigation. Therefore, preparation into the order of interviewees and questions that need to be asked will pay dividends.
Writing an Investigation Report.
Once the evidence gathering has concluded, the investigating officer should compile their findings into a written document that can be securely shared with all the parties involved. Again, it will be helpful to use an investigation report template which includes all the major sections.
The report should detail all the evidence complied, the facts that have been established, and any information that couldn’t be confirmed or remains uncertain. While the report itself doesn’t need to restate word-for-word every piece of evidence gathered, it should at least record what has been collected and ideally summarise or quote relevant portions.
Finally, the investigating officer needs to make a recommendation based on their findings. This recommendation should be solely based on conclusions drawn from the investigation they have conducted and be clear from the report how they have been reached. Depending on the company’s disciplinary policy the recommendation of the report may be:
Most importantly if the investigator does recommend formal action, they should not then proceed to suggest sanctions or in any way prejudge what a disciplinary or grievance hearing may find.
Once the investigation process has been completed, you may like to follow up the outcomes and gauge the effect that the recommended actions have had on those involved. If the recommendations have resulted in a positive improvement, other proactive actions may be able to be taken which will anticipate and spot behaviours before they become problems.
Unfortunately, in most businesses the word "discipline" carries negative connotations, with most employees and managers instantly associating it with misbehaviour, misconduct and mistakes. This can easily lead employees to think that a disciplinary procedure is only there to punish and dismiss them.
While there's no denying that having a formal process in place protects your business in the event that misconduct action has to be taken against an employee, but establishing a Disciplinary Policy doesn’t have to be done in a negative light.
Discipline [noun] - 'the practice of training people to obey rules or a code of behaviour'
Disciplinary procedures should be used to ensure that your employees are aware of the business rules and the performance standards that are expected from everyone in the company.
Publishing these rules, standards and procedures in a written Disciplinary Policy is the first step in ensuring this message is communicated clearly.
Employer legal obligations on disciplinary.
First things first, all employers need to provide a new member of staff with a 'written statement of employment particulars' within the first two months of their employment.
Often this is covered off by a Contract of Employment signed and agreed before the employee starts, but it doesn't have to be. It can also be a more simpler statement detailing the job description, hours of work, holiday entitlement, salary etc.
However, regardless what document is provided to the employee, it needs to detail the disciplinary process or at the very least where it can be found.
The Disciplinary Procedure or Policy itself should follow the Acas Code of Practice which sets out criteria for a reasonable process that both employees and employers should follow. Much of this will be commonsense such as allowing an employee to be accompanied, providing minutes of meetings and giving the right to appeal any decision.
If an employer's procedure doesn't comply with the Acas Code of Practice (or a procedure isn't followed at all) they could be ordered to pay additional compensation to an employee should an employment tribunal ever need to become involved.
Advantages of a disciplinary policy.
Secondly business owners and HR need to present a company disciplinary procedure as a positive tool for effective performance management.
When implemented correctly, the policy's primary function should be as a way of adjusting employee behaviour to aid performance and improve employee alignment with the business goals. Informal discussions and coaching needs to be the first step and at the forefront of the policy, clearly emphasised over a last resort of using sanctions and penalties.
Writing a disciplinary procedure
Hopefully you're convinced of the merits of implementing a disciplinary policy and procedure in your business; and if you already have one in place, the benefit of regularly reviewing it to ensure it covers both your employer obligations/protections as well as focusing on performance improvement.
But if you are in any doubt of what your policy should cover, then seeking legal advice on your disciplinary procedures should be your next step.
If a disciplinary policy is written correctly, communicated clearly and implemented effectively, your business will greatly reduce the risk of employment law issues, and most importantly, create a transparent working environment for your team to thrive in.
Whether your business is small or large, if you employ staff you need to have some kind of grievance procedure in place.
Think of a Grievance Policy as a method of settling employee complaints as fairly and quickly as possible. Your staff will almost certainly come across problems in their day to day role and although most issues can be resolved informally with good people management. But if this ever fails, a set grievance procedure needs to be the next step.
Staff Grievances and the ACAS Code of Practice.
ACAS, the Advisory, Conciliation and Arbitration Service is a public body setup to help businesses and employees prevent problems at work before they arise. The ACAS Code of Practice gives practical guidance for handling disciplinary and grievance issues in the workplace and should be followed and referred to at every opportunity.
While the ACAS code isn’t considered legally binding, failure to comply with it can end up costing your business.
If a claim from an employee went to an employment tribunal and was found in their favour the tribunal can increase the compensatory awarded if the ACAS code was found to have been ignored. For example:
Being a fair and transparent employer.
Putting in place a grievance policy to avoid potential litigation costs might be all the reason you need, but a grievance process can be a valuable aspect of good employer-employee relations.
Having a documented procedure in place that employees are aware of and feel comfortable using gives them confidence that any grievances that they may have can be aired in a formal and professional setting. Without a clear policy, good employees may simply choose to leave your business rather than continue trying to deal with a serious issue informally.
What should a grievance procedure contain?
A grievance procedure doesn't need to be a standalone or lengthy document. It can be covered off in a section of your employment contract or as part of your employee handbook. However, to document the procedure fully you may wish to have a dedicated grievance policy that is easily accessible to staff.
We offer a small business grievance procedure template, but any policy that you draft should comply with ACAS guidelines and cover the below broad areas:
Employment disputes can have a huge impact on a business, so building a working environment where team members can be open about problems should be a goal of every employer.
But when issues can't be dealt with informally, having a published grievance policy and procedure provides you the opportunity to resolve problems before they become detrimental to the workplace.
Catalyst Law are team of legal professionals with over 20 years' experience helping businesses and people with their legal problems.
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