Conducting a Fair Investigation as an Employer
Normally, the only time that an employer will required to undertake an investigation is when there has been an accusation of misconduct against one or more employees, as a precursor to taking disciplinary action.
The ACAS code states, at paragraph 5, that, in such circumstances employers would normally “carry out an investigation to establish the facts of each case”.
The extent of the investigation required will depend upon the facts of each case. In fact, there may be some circumstances in which no investigation is required, for example if the employee admits to the misconduct.
However, if an investigation is warranted (and it normally will be if there is a factual dispute) it should be carried out fully and fairly. The investigation is a fundamental part of the Burchell test - the employer cannot satisfy the test unless it has a genuinely held belief, based on reasonable grounds, following a reasonable investigation. And if the employer cannot satisfy the Burchell test, the dismissal is likely to be unfair. Fair investigations are therefore very important!
The most important task of the employer is to gather all of the facts – not (as is often the case) just he facts which support the employers point of view – but all of the facts. An employer who is found to have conducted a one-sided investigation is likely to find that it is in difficulties at the tribunal.
As mentioned above, what constitutes a reasonable investigation will depend of the facts of the case. Some investigations may simply involve collecting the evidence; on other occasions the employer will need to conduct an investigatory meeting with the employee.
If an employee is facing very serious allegations, for example criminal allegations or allegations which could potentially affect a persons future career, the employer should ensure that the investigation is undertaken thoroughly.
Employers should also make sure that they don’t unnecessarily delay conducting an investigation – as this may prejudice the employees position if he or she (or any other witnesses) cannot clearly recollect the facts. This is backed up by paragraph 5 of the ACAS code which recommends that employers conduct investigations ‘without unreasonable delay’.
Employers should also be aware that the Code recommends that, if possible, they appoint different members of staff to deal with the investigation and any subsequent disciplinary hearing. By doing this, they safeguard themselves against any allegation that the process has been tainted with bias.
In conclusion, the investigation is a very important part of the disciplinary process. If it is not undertaken fairly, it is very possible that a finding of unfair dismissal will ensue.