Disciplinary Investigations

A proper investigation is essential before any disciplinary action. It establishes facts and determines whether there's a case to answer.

Purpose of Investigation

What It Achieves

• Establishes what happened
• Gathers evidence
• Identifies witnesses
• Determines if formal action is warranted
• Creates record for any hearing

Why It Matters

Without proper investigation:

• Dismissals may be unfair
• Evidence may be missed
• Wrong conclusions may be reached
• Tribunal claims more likely to succeed

The Investigation Process

Appointment of Investigator

The investigator should be:

• Independent - not involved in the alleged incident
• Impartial - no preconceived views
• Senior enough - to be taken seriously
• Different from potential decision-maker

Investigation Steps

1. Define scope - what exactly is being investigated
2. Gather documents - emails, records, CCTV, etc.
3. Interview witnesses - anyone with relevant knowledge
4. Interview subject - the employee under investigation
5. Analyse evidence - weigh up what's been found
6. Prepare report - summarise findings and recommendations

Investigation Meetings

Meeting With the Subject

The employee under investigation should:

• Be told it's an investigation meeting (not disciplinary)
• Know the nature of the allegations
• Have reasonable notice
• Be allowed to explain their side
• Receive notes of the meeting

No Statutory Right to Be Accompanied

Unlike disciplinary hearings:

• No legal right to companion
• Some employers allow it anyway
• May be required by company policy
• Consider allowing it in complex cases

Meeting With Witnesses

Witnesses should:

• Be interviewed separately
• Be assured of confidentiality (as far as possible)
• Be asked open questions
• Have statements recorded
• Be able to review their statements

Employee Rights During Investigation

What You Should Know

• Nature of the allegations
• Why you're being investigated
• That no decision has been made yet
• How to contact the investigator

What You Can Do

• Respond to allegations
• Provide your own evidence
• Identify witnesses in your favour
• Ask for reasonable adjustments if needed
• Request copies of your statements

What You Can't Do

• Interfere with the investigation
• Contact witnesses to influence them
• Destroy evidence
• Refuse to cooperate without consequence

Evidence Gathering

Types of Evidence

Evidence Type	Examples
Documentary	Emails, contracts, policies, records
Electronic	CCTV, system logs, phone records
Physical	Products, equipment, items
Testimonial	Witness statements
Expert	Technical opinions

Handling Evidence

Investigators should:

• Preserve evidence promptly
• Create copies where appropriate
• Document chain of custody
• Keep evidence secure
• Maintain confidentiality

Using CCTV/Monitoring

• Must comply with data protection
• Should have legitimate purpose
• Employee may request access
• Should be relevant and proportionate

Investigation Report

Contents

A good investigation report includes:

• Terms of reference - what was investigated
• Methodology - how investigation was conducted
• Findings of fact - what the evidence shows
• Analysis - weighing conflicting evidence
• Conclusions - what likely happened
• Recommendations - whether to proceed to disciplinary

Standard of Proof

For workplace investigations:

• Balance of probabilities - more likely than not
• Not criminal standard (beyond reasonable doubt)
• Consider what a reasonable employer would conclude

What Happens Next

Based on the report:

Finding	Outcome
No case to answer	No further action
Minor issue	Management advice/training
Case to answer	Formal disciplinary process
Serious case to answer	Disciplinary with potential dismissal

Timeline

How Long Should It Take?

No fixed rule, but:

• Should be completed "without unreasonable delay"
• Simple cases: days to 2 weeks
• Complex cases: weeks to months
• Keep employee informed of progress

Factors Affecting Length

• Complexity of allegations
• Number of witnesses
• Availability of people
• Volume of evidence
• Need for external expertise

Employee on Suspension

If suspended during investigation:

• Extra urgency to conclude quickly
• Regular reviews of suspension
• Updates on progress
• Consider alternatives to continued suspension

Common Issues

Inadequate Investigation

Problems include:

• Not interviewing key witnesses
• Ignoring evidence
• Bias in questioning
• Not giving employee chance to respond
• Predetermined outcome

Confidentiality Breaches

• Investigations should be confidential
• Leaks can compromise process
• May affect witness candour
• Could lead to separate action

Delay

Unreasonable delay can:

• Make dismissal unfair
• Cause unnecessary stress
• Affect evidence quality
• Amount to constructive dismissal (extreme cases)

Tips for Employees

If You're Under Investigation

1. Stay calm - it's fact-finding, not a decision
2. Cooperate - refusing to engage looks bad
3. Tell the truth - lies will be found out
4. Keep records - your own notes and evidence
5. Don't discuss with witnesses or colleagues
6. Get advice - consider union or legal support

If You're a Witness

1. Be honest - tell the truth as you recall it
2. Be factual - stick to what you know
3. Review your statement - ensure accuracy
4. Keep confidential - don't discuss with others
5. Ask questions - if you don't understand

Employer Best Practice

Conducting Fair Investigations

• Appoint genuinely independent investigator
• Define clear terms of reference
• Gather evidence promptly
• Interview all relevant witnesses
• Give subject meaningful opportunity to respond
• Document everything
• Conclude without unnecessary delay
• Keep investigation separate from decision

Documentation

Keep records of:

• Appointment of investigator
• Terms of reference
• All evidence gathered
• Interview notes (signed if possible)
• Investigation report
• Outcome and next steps