Whenever an employer becomes aware that there’s been an issue of misconduct, it’s necessary to conduct an investigation into the circumstances in order to gather the relevant facts. The purpose of an investigation is to establish a fair and balanced view of the facts relating to any disciplinary allegations against an employee, before deciding whether or not to proceed with a disciplinary hearing.
The amount of investigation required will depend on the nature of the allegations and will vary from case to case. It may involve interviewing and taking statements.
Taking witness statements
If you’re collecting witness statements, get these in writing either by interviewing witnesses or having them prepare a statement for you. A statement should be signed and dated by the individual.
When interviewing witnesses, aim to:
- assure the individual that the purpose of the interview is to gather facts;
- explain that their assistance is important;
- uncover all aspects of the event;
- make sure the individual understands what their statement will be used for;
- focus on facts, not opinions; and
- don’t draw conclusions too hastily
Natural Justice and disciplinary proceedings
One thing that should always be considered when carrying out a disciplinary investigation is Natural Justice which is based on two central points:
- An individual will not be judged until they have been given a full chance to prepare and submit his or her case to the employer.
- No decision is valid if it has been influenced by any financial consideration or the decision maker has made a biased decision.
In practice this means that an employer should not have any pre-determined ideas or make decisions until the issues have been fully disclosed to the accused employee and the individual has had an opportunity to explain their side or version of events. This is the reason for giving advance notification of any disciplinary hearing in the form of an invitation along with a description of the allegations against them.
When inviting an employee to a disciplinary hearing it is essential that they are furnished with all of the evidence in advance of a disciplinary hearing, including witness statements.
This allows the employee to prepare his or her own case.
Natural justice and the identity of witnesses
Employers often ask us if they can keep the identity of witnesses anonymous when providing witness statements to the accused employee. In most cases, this would be unadvisable as it intereferes with the the accused employee’s ability to prepare their case.
When taking witness statements therefore, it will be important that you ensure the witness understands that you’re unable to guarantee anonymity, partly due to the fact that the accused employee will have the right to be told about the witness statement and a tribunal may order the disclosure of documents.
When a witness wants to remain anonymous, it can be allowed but this would only be advised in exceptional circumstances where the witness is genuinely fearful of repercussions. For instance, they may have been subject to harassment.
In these circumstances, you would need to provide a detailed case as to why the witness has remained anonymous and you should try to find other evidence that backs up what the witness has said and consider why they are coming forward with evidence. It’s also important to consider if there are any personal conflicts between the witness and the accused. In these circumstances, aim to establish the reason for any reluctance as well as consider the possibility that the employee or witness may have reason to fabricate the evidence they give.
When statements are anonymised
If, however the statements do need to be anonymised for potential reasons such as harassment then it’s important to seek to corroborate the witness’ statement with an account from another witness.
Full disclosure may not be required when the Tribunal is satisfied that there are genuine reasons for retaining anonymity. In this case, a Tribunal would examine your decision to protect the witnesses’ anonymity. A case which highlights this is in the case of Asda Stores Ltd v Thompson. The EAT held that employers will not usually be obliged to disclose witness statements in their entirety where these statements have been given on the basis of confidentiality and anonymity.
An employer could disclose witness statements which have been redacted so as to conceal the identity of their authors. It should be noted however, that only in very exceptional circumstances may the entire document be excluded from disclosure.
It is always important to be mindful that where a witness statement is not completely disclosed there could be a strong argument that the accused employee has not had the full case put to them and therefore the principles of natural justice have been violated.
Acas Code of code of practice on disciplinary and grievance procedures
In unfair dismissal claims, employment tribunals take the Acas code of practice on disciplinary and grievance procedures into account where relevant and may increase an award of compensation by up to 25% for an Employer’s unreasonable failure to follow it.
A particular case that highlights the importance of natural justice in disciplinary proceedings is Archer and another v Solvent Resource Management Ltd [2010] ET/1102496/2009 & ET/1102520/2009. The employment tribunal found that the employer had unreasonably failed to comply with the Acas code of practice.
It was found that the employees had been unfairly dismissed and this was in part due to the fact that they had no opportunity to know the full nature of the allegations against them and therefore could not respond to such allegations.
In unfair dismissal claims, employment tribunals take the Acas code of practice on disciplinary and grievance procedures into account where relevant and may increase an award of compensation by up to 25% for an employer’s unreasonable failure to follow it.
We hope you found this article useful. If you have a disciplinary investigation that you would like support with, please contact us.
