Investigations at work

Investigation at work

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Investigations at work

Why might an investigation be needed?

You are likely to face an investigation where your employer is considering taking disciplinary proceedings against you and need to find out as much information as possible about the issue. The investigation in itself is not a part of the disciplinary process, although it will often lead down this path.

An investigation may also be necessary where you have lodged a grievance, and your employer needs to look into the issues you have raised.

Who can carry out the investigation?

In disciplinary cases, your employer should try to ensure that the person who investigates is somebody who is not directly connected to the case, and has no conflict of interest . This could be another manager or even HR. In very small companies, this may not be possible and the same person directly related to the issues being investigated may be necessary.

In exceptional circumstances, it may be appropriate to appoint someone who is as detached from the matter as is practical, such as an external consultant.

As an example, your employer may have a disciplinary policy that states, where possible:
• formal investigations will be handled by a line manager
• disciplinary hearings will be handled by line managers or a senior
• any appeal hearings will be handled by a director

In grievance investigations, the position is different, and it is often better for the person hearing the grievance to also investigate the issue.

When should I be told about the investigation?

You should be informed of this as soon as the investigation is open. In some circumstances, however, your employer may not disclose the fact that you are being investigated where it is considered there is a risk you may influence witnesses or tamper with evidence.

Will I automatically be suspended if I am being investigated?

Quite often (especially in serious cases) an employer will suspend someone pending the outcome of the investigation, and this right is usually reserved in most contracts of employment. A suspension may be deemed necessary, so that your employer can properly carry out their investigation unfettered and without the ability for you to tamper with evidence or speak to potential witnesses. Indeed, the terms of your suspension will spell out that you cannot attend the workplace or speak to work colleagues.

It is not always the fact though, that there will be a suspension pending an investigation, and your employer should ideally consider alternatives, and also your wellbeing. In reality however, most employers will go straight into suspension.

Am I entitled to be told that I am being investigated at work?

Yes, you should be informed of this as soon as your employer has opened an investigation, unless it is believed that you may tamper with evidence or influence witnesses in which case they are entitled to wait until there is less risk.

Should I be told of the reason why I am being investigated?

The ACAS Code for investigations says it is a good idea for your employer to explain (unless there is good reason):

  • why they are carrying out an investigation;
  • who will be carrying it out;
  • that they may need to talk to relevant witnesses;
  • how long it could take;
  • what will happen next, for example a meeting;
  • that everything will be kept confidential.

How long should the investigation take?

It should be completed as quickly as possible, although this could be days or weeks’, depending on the nature of what is being investigated. Any reasonable further time needed is allowed, and this should be explained to you.

How much notice should I be given for an investigation meeting?

There is no defined minimum period of notice, and the ACAS Code says it should be “reasonable”. In most cases, a few days will be considered reasonable, although you may be able to argue for a longer period if it necessary for you to prepare.

What If I am not well enough to attend the investigation meeting?

Your employer should carry out the investigation in a fair way as much as possible. If you do not attend the investigation meeting for any reason, this should be rearranged. If the reason for not attending is because you are off with stress and worried about coming to work, your employer should consider holding the meeting in a more neutral environment or via a video call.

if you are off work because of a medical condition, your employer should consider asking your permission to consult with your medical expert on getting an opinion about your fitness levels to attend the meeting. You may also be requested to attend a consultation with an occupational health therapist appointed by your employer. Many contracts of employment provide for an employer’s right to to make such a request.

If you are too sick, or continue to be not able or not willing to attend the investigation meeting, your employer will need to look at all the evidence and make a reasonable decision what to do. This will depend in part on the the seriousness of the disciplinary or grievance issue, and your employer might decide that it needs to carry on with the investigation without you. You should be informed of this decision.

Do I have the right to be accompanied to an investigation meeting?

You do not have the statutory right to be accompanied to the investigatory meeting, although it is good practice for employer’s to allow this.

The position is different to an actual grievance or disciplinary hearing where you do have the right to be accompanied by either a work colleague, trade union official, or a workplace trade union representative who’s certified or trained in acting as a companion.

Is witness evidence allowed in an investigation?

Yes, and your employer is entitled to ask them to write it down in a ‘witness statement’. The person investigating can also have a meeting with a witness to ask them what they know or saw.

If there is a large number of people who witnessed the same incident, the person investigating does not have to approach all witnesses unless:

  • they are broadly not saying the the same thing;
  • there are significant differences in what the witnesses are saying;
  • not enough information is being gathered.

Am I allowed to see such witness evidence?

Yes, you are entitled to be provided with a copy of any written evidence, which includes witness evidence.

What happens at the investigation meeting?

At the meeting, the interviewer should:

  • ask questions to gather the facts of the matter;
  • probe you about what the investigation relates to without it being in an adversarial manner;
  • record responses and any refusal to respond.
  • provide evidence (and ask for evidence) that may substantiate information provided by either party.

What happens after the investigation is concluded?

Your employer (or an external consultant if appointed) should normally compile a written report and share this with you. This should include any statement you provide. The written report should also includes detailed notes or a transcript of what was said and you should be asked to confirm the accuracy of this. Even if you are not asked to do so, you should let your employer know as soon possible if there are any inaccuracies or ommissions.

If the person investigating is to give recommendations at the end of the investigation, then this should be one of the following:

  • formal action (such as to initiate a disciplinary hearing or further investigation);
  • informal action (such as training or coaching, counselling, mediation or notice that similar action may be disciplined);
  • no further action.

If your employer cannot or is unwilling to resolve matters at the disciplinary stage, they will carry on with either the:

disciplinary or;

grievance procedure.

For more information on any disciplinary or grievance investigation matter, and a free consultation, please get in contact on 020 7100 5256 and ask to speak to Philip Landau or any member of the employment team, or email us.


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