CONDUCT A DISCIPLINARY HEARING

1. Introduction

When an employee is accused of misconduct serious enough to warrant disciplinary action, an investigation into the allegations will be needed to decide whether there is a disciplinary case to answer, and whether the issue needs to proceed to a formal disciplinary hearing.

A thorough investigation ensures that whoever conducts the disciplinary hearing has all the relevant information to allow them to make a fair decision. It is important to carry out an investigation to make sure that any disciplinary action that the organisation takes is justified and the right thing to do in the circumstances.

If we dismiss someone without carrying out a fair investigation, a subsequent employment tribunal is likely to decide that the dismissal was unfair.

The following information is designed to help you ensure that any disciplinary investigation you are asked and agree to conduct is fair and meets the standards that an employment tribunal requires of an investigation.

2. Starting an investigation

Understanding your role in the disciplinary process

The three fundamental stages of a fair disciplinary process are:

• an investigation;

• if the investigation finds a case to answer, a disciplinary hearing; and

• an opportunity to appeal against any sanction that is imposed (typically, a written warning or dismissal).

Your role as an investigator involves only the first of these stages.

It is important that, where possible, each stage is dealt with by different line managers and senior members of staff, and often they will be outside the reporting lines of the parties involved in the allegations.

This means that you will be investigating allegations involving individuals in other teams or departments with whom you may not work with on a day-to-day basis.

Once you have completed the investigation and delivered your investigation report, your role in the disciplinary process is over.

Other line managers and senior members of staff will be asked to lead the second and third stages, with HR overseeing the disciplinary process, and providing guidance and practical assistance.

3. Understanding the scope of your investigation

The first thing to be clear about is the scope of the disciplinary investigation - what are the allegations that you are investigating?

HR should set this out clearly for you in the terms of reference, which are a set of instructions that lay out:

• the scope of the investigation; and

• the questions that the investigation is expected to explore and report back on.

The terms of reference should be specific enough to allow:

• the employee to know what accusations they face; and

• you to know what evidence you need to gather.

You also need to familiarise yourself with any internal policies and procedures that are relevant to the investigation, including any policies and procedures that the employee is alleged to have breached.

The allegations made against an employee will have been set out for them when they were informed that an investigation is to take place. For each allegation, you need to consider:

• Who is in a position to know what happened?

• What documents - such as emails or written records of meetings or processes - are likely to be relevant?

• What other evidence - such as phone records, recordings of online meetings, emails, website-browser history and CCTV footage - is available?

This should allow you to plan your investigation, in particular when deciding to whom you need to speak and in what order you need to speak to them.

A clear plan of how you are going to conduct the investigation helps you keep to a reasonable time frame. The plan may need to be revisited over the course of the investigation as circumstances develop.

4. Key principles when conducting an investigation

For a disciplinary investigation to be fair, it must be:

• Prompt: The memory of events fades quickly over time. The longer an investigation takes, the harder it is for people to remember what happened. A long, drawn-out investigation is also likely to undermine the morale of those involved - they are left without a resolution to important and sensitive matters. We appreciate that line managers may be very busy, but it is important that any investigation is given priority so that it can be completed within a reasonable time frame.

• Thorough: It is important to ensure that the investigation paints as complete a picture as possible of what happened, including the context and surrounding circumstances of the relevant events. With that in mind, where the subject matter of the investigation inevitably deals with specialist or technical issues, the line manager conducting it must have sufficient experience and expertise to deal with those issues appropriately.

• Unbiased: Whoever conducts the investigation should not be too closely involved with the people or events concerned. If you think that your relationship with the employee who is the subject of the investigation - or your relationship with a witness - could give others the impression that you might be biased, you should discuss with HR whether it is appropriate for you to be the investigator.

• Independent: It is important that any findings that you make in an investigation are based on your assessment of the evidence and not the result of any pressure placed on you by anyone else.

• Balanced: The purpose of the investigation is to find out what happened - not to gather evidence against the employee concerned. It is essential that any investigation is even handed, paying equal attention to both evidence that supports the accused employee's case and evidence that supports the allegations that have been made.

5. Time frame

The more complex a disciplinary investigation, the longer it will take. However, the completion of an investigation should be treated as an urgent priority - especially if the employee accused of misconduct has been suspended.

As a general rule, an investigation should be completed within three to four weeks, and the expected timescale should be set out in the terms of reference (which should be drafted by whoever is commissioning the investigation).

If this does not seem possible or something happens that is likely to delay the investigation, you should discuss the matter with HR.

The employee should be informed of any delays in the investigation.

6. Thoroughness

The investigation should be thorough but also proportionate.

For example, if an event was witnessed by 10 people, it might not be necessary to interview all of them as part of the investigation. It may quickly become clear that there is no real dispute as to what happened. In these circumstances, the perspective of three or four people may be enough.

There may be specific allegations that are admitted by the accused employee. Once the admission has been noted that issue does not need to be investigated further. For instance, if the accused employee admits that they left work early on a particular day, you do not need to interview all the employees who saw them do so. The fact is established, and you can focus on those matters that are in dispute.

However, you should remember that the purpose of the investigation is not simply to present the evidence against the accused employee. You need to pay equal attention to evidence that supports the employee's position. If the accused employee asks you to interview particular individuals, you should consider that request carefully. In deciding whether to pursue that line of inquiry, ask yourself what knowledge the suggested witness would have of the allegations that you are being asked to investigate.

While you should take the views of the accused employee into account, it remains your responsibility to decide whom to interview as part of your investigation.

If the police are involved, your ability to investigate matters may be curtailed. You should pursue your investigation as far as possible in the normal way but ensure that you cooperate with any requests made by the police and comply with any instructions that they give about what matters you may or may not pursue.

7. Confidentiality

A disciplinary investigation is a confidential process. You must not discuss the contents of the investigation with colleagues, other than those who are supporting you in the process.

It is important that any witnesses are told that they must not discuss the evidence that they give with others (with the exception of their representatives or legal advisers).

To avoid the suggestion of collusion, witnesses must not speak to each other about the events concerned. This also ensures that, where two accounts of the same event coincide, genuine corroboration is provided and the evidence is strengthened.

8. Arrangements for investigatory meetings

When arranging an investigatory meeting, it should take place during normal working hours wherever possible, and you should make sure the time is convenient for the interviewee. Give them an estimate in advance of how long the meeting is likely to last.

If the meeting is face to face, it should take place at, or as near as can reasonably be arranged to, the interviewee's normal place of work and be held in a room separate from other employees, where the participants will not be overheard.

The interviewee should have water available and be able to take appropriate breaks if the investigatory meeting is likely to last for more than one hour.

If the meeting is being held remotely, make sure that the interviewee has the appropriate equipment and environment to allow them to participate. For example, an investigatory meeting conducted with the interviewee using their phone while sitting in a café is unlikely to be effective.

If the interviewee does not have suitable facilities to participate in a remote meeting, alternatives should be explored. This could include providing them with a meeting room that has a secure internet connection and appropriate equipment. This could be at:

·       the organisation's premises that are nearest to the interviewee's home; or

·       rented office space as close as possible to the interviewee's home.

9. Interviewing the accused employee

Almost always, a fair investigation will involve speaking to the employee who has been accused of misconduct. In many cases, it is a good idea to speak to the employee first to gauge their reaction to the allegations. This will allow you to identify which allegations are disputed and which, if any, are admitted.

Where you do speak to the employee at an early stage, you may need to arrange another investigatory meeting towards the end of the process so that you can put to them any evidence that you have gathered that may seem to contradict their account.

A fundamental principle of fairness is that the accused employee is told of the allegations that have been made and given a proper opportunity to respond to them.

The investigation process is an important part of making sure that this happens.

Make sure that sufficient detail about the nature of the allegations that have been made is provided to the employee in advance of the meeting to allow them to give a considered response.

When interviewing the employee, it is important to remember that the investigation must be neutral and unbiased - the purpose of the investigatory meeting is not to force a confession or to demonstrate to the employee that they are guilty of misconduct.

If significant new evidence emerges, it is important that this is put to the accused employee before the investigation is concluded.

The aim is to put the allegations to the employee and allow them to give a response. This includes a response to the specific pieces of evidence that tend to support the allegations, such as emails or written records of meetings or processes, phone records, recordings of online meetings, emails, website-browser history or CCTV footage.

It is important to bear in mind that the investigatory meeting can be a difficult and stressful experience for the accused employee.

You should remain calm and courteous throughout and give the employee time to think before answering a question.

It may be appropriate to challenge the accused employee's account when there is evidence that contradicts it. However, once the employee has given their response to any challenges, note what they have said and move on. Do not dwell on the issue and do not let yourself be drawn into an argument.

At the end of the investigatory meeting, it is a good idea to ask the employee if there is anything else that they would like to say in response to the allegations. This ensures that important information is not missed, and the employee has had every opportunity to put forward their side of the case and present any evidence that may support them.

10. Interviewing witnesses

It is likely that a key part of the investigation will consist of interviewing witnesses. When you have identified the witnesses to with whom you need to speak, they should be given enough information about why to ensure that they are able to answer your questions. For example, it might be necessary for them to check their diary or emails to refresh their memory about the events you want to discuss.

Witnesses can be identified in a number of ways depending on the nature of the investigation.

They may be specifically mentioned in a complaint or allegation, or they may have been involved in, or been in close proximity to, the events. They may be the line manager of those whose conduct is under scrutiny, or it may be apparent from their role in the organisation that they are likely to have direct knowledge of the issues that are being investigated.

For confidentiality you should be very careful not to give witnesses more information about the allegations than they need to know to answer your questions.

It is important to remind witnesses that the investigation is confidential and that they should not discuss their involvement with colleagues unless they need to - for instance, to be released from their work to attend their investigatory meeting with you.

It is a good idea to reassure witnesses that:

• no allegations have been made against them (unless they have been implicated and are also under investigation); and

• you merely need their help in getting to the bottom of what happened.

There may instances where a witness refuses to provide evidence to the disciplinary investigation - see below for guidance on what to do if this happens.

11. Getting evidence from third parties

Where evidence is required from a third party who is not an employee, the individual may not want to attend a meeting to provide a witness statement.

One option is for you to take a statement over the phone or via a video conferencing platform and send it to the witness for them to check, sign and date.

Another option is for the third party to provide a written witness statement, in which case it is advisable for you to provide a list of questions and issues for them to address.

12. Asking questions during investigatory meetings

Whether you are interviewing the accused employee or a witness, you should use a combination of open and closed questions to guide them through their evidence.

• Closed questions are useful to get confirmation of a fact that can be quickly established.

• Open questions invite a longer answer and leave it to the witness to describe events as they remember them. An open question is best used in obtaining any evidence that might be disputed.

• Leading questions – i.e., questions that prompt or encourage the answers wanted - should be reserved for reiterating established facts or recapping or reaffirming what the witness has said to help them to feel heard. Otherwise, you should avoid leading questions, which can suggest that you already have conclusions in your mind about what happened and are looking for evidence to corroborate those conclusions.

In asking questions about events, you should attempt to find out:

• What happened?

• How does the witness know that? For example, did they witness it or did they just hear someone else talking about it?

• Where did the events take place and where was the witness in relation to them?

• When did the incident occur?

• Who else was present at the time?

• Is there anything that might explain why the events happened as they did?

You should remember that the purpose of the investigatory meeting is to gather information, not to prove a point or win an argument.

It might be appropriate to challenge the account given by a witness, but you do not need to force them into a confession. It is important to keep an even temper and avoid sounding irritated or disbelieving. Once they have given their account, move on to the next issue.

It is important to avoid offering your own opinion, being judgmental or speculating on the outcome of the investigation.

13. Investigatory meeting records

All interviews should have an accurate record of what was said. You should either take a detailed note while conducting the investigatory meeting or arrange for a colleague also attending the meeting to do so.

The note does not need to be a verbatim record but should contain enough detail to set out the information that the interviewee gave that is relevant to the investigation being conducted.

After the interview, the notes should be finalised and sent to the interviewee for correction or comment.

If the interviewee proposes changes, you should consider whether the amended version of the notes would present an accurate and fair record of what was said.

• If you are happy to accept the changes, simply incorporate them into the final version of the notes.

• If you are not happy with the proposed amendment, you should note the interviewee's proposed amendment at the end of the investigatory meeting notes and explain why you did not accept it.

The original version with those comments attached will form the investigatory meeting record that you use in compiling your investigation report.

14. Investigations - specific issues that may arise

Witnesses who are uncooperative or reluctant

If a witness does not want to participate in the investigation, you should explore with them the reasons why. For example, if they say that they:

• do not want to be perceived as a "grass", "snitch" or "tattletale";

• do not trust management; or

• do not have the time or inclination to participate in the investigation,

you could explain to them that:

• their failure to give evidence will hamper the employer's ability to take action against the alleged perpetrator because of a lack of evidence;

• the employment relationship means that they are under an obligation to follow reasonable management instructions; and

• it is simply the right thing to do in the circumstances, reminding them of the nature of the allegations and the potential injustice of wrongdoing going unpunished.

If a witness appears to have a genuine fear of retaliation, you should have as open and honest a discussion as possible with them about:

• where they fear the retaliation could come from (for example from the accused employee or a colleague of the accused);

• how likely it is that retaliation will occur; and

• what the employer can do to protect them (for example, reminding them to report immediately any intimidation via the employer's anti-harassment and anti-bullying policy).

If you have had these discussions with the witness and they continue to refuse to participate, you should:

• inform HR, so that they can decide if any further action needs to be taken against the witness (disciplinary action against an uncooperative witness is a possibility, although is likely to be a last resort); and

• include a note in your investigation report stating that the witness did not want to give evidence and the reason(s) that they gave for this.

15. Requests to be accompanied at investigatory meetings

If disciplinary procedure allows companion at investigatory meeting

If your organisation's disciplinary procedure allows an employee who is being interviewed during an investigation to be accompanied, when inviting the employee to the investigatory meeting, you should remind them that they can be accompanied and set out who can act as a companion. Check the disciplinary procedure, which should set out who can accompany them (typically, a fellow employee or a trade union official).

You can offer to include them in any invitation to the meeting and ask whether the employee would like you to copy them in on any information or documentation that you intend to send to the employee.

At the investigatory meeting, you should be careful to avoid getting into lengthy discussions with the representative. It is not their role to answer questions on the employee's behalf. They are there to support the employee and make representations if needed.

If disciplinary procedure does not allow companion at investigatory meeting

An employee may request to be accompanied at the investigatory meeting by a fellow employee or trade union official.

There is no right for them to be accompanied at this stage (although your organisations disciplinary procedure may allow this) and it is therefore up to you, in consultation with HR, to decide on the best way to proceed.

On the one hand, it may be that agreeing to their request encourages them to cooperate with the investigation. On the other hand, you may be concerned that their chosen companion will be disruptive and hinder the process.

You may agree to allow them to be accompanied for moral support but make it clear that the companion will not be permitted to take an active role in the meeting.

Where the employee is the one accused of misconduct, it is a good idea to remind them that, if the matter proceeds to a disciplinary hearing, they will be entitled to be accompanied by a companion who will be able to make full representations on their behalf.

If the employee needs assistance or support at the meeting because of a disability or if English is not their first language and they need help with translation, you should attempt to make arrangements that will allow them to take part.

16. Witnesses who ask for anonymity

Sometimes witnesses will want to preserve their anonymity in any investigation. You should stress that you are not in a position to guarantee this.

There are limited circumstances in which it may be appropriate to reassure a witness that their identity will not be revealed, but these are largely confined to cases where there is a legitimate concern that the witness may be at risk of violence as a result of speaking out.

If anonymity is necessary, this could be achieved by:

• blanking out the witness's name and any other distinguishing features before disclosing the document to the employee;

• editing the statement to conceal the identity of the witness; or

• preparing a summary of the information contained in the statement.

The witness can be made aware that, should the matter being investigated result in tribunal proceedings, the tribunal may order disclosure of relevant documents, including the witness statements, irrespective of whether they are confidential.

In most cases, employees who are concerned about the impact that their evidence will have should be reminded of their duty to cooperate with the investigation and explain what they saw or heard. It is very difficult to have a fair investigation where the employee has to respond to anonymous allegations.

Where there are genuine concerns and a witness insists on anonymity, you should approach HR for advice on how to proceed.

17. Requests for audio/video recording of investigatory meetings

An interviewee may ask for their investigatory meeting to be recorded. For example, they could ask for:

• an audio recording if the meeting is face to face; or

• a video recording if the meeting is remote (since various video conferencing platforms have the facility to record meetings with an automated transcript generated).

If it is not your organisation's policy to allow the audio or video recording of investigatory meetings, you can:

• inform the interviewee of that fact; and

• reassure them that a detailed note will be taken, which they will have the opportunity to read and check for any errors.

In certain limited circumstances, you may permit a meeting to be recorded electronically, for example where it is a reasonable adjustment for an employee with a disability.

If you have reason to believe that an employee has secretly recorded a meeting despite being asked not to, discuss the matter with HR.

18. Sickness absence

If a witness is absent

If an employee you need to interview is on sick leave, you should speak with HR who will be able to determine whether the witness:

• is likely to return within a reasonable time frame; or

• can be approached for interview notwithstanding their absence.

If the witness cannot be approached and their absence is likely to be ongoing for some time, it is normally better to continue with the investigation and mention their absence when writing your investigation report. You can assess the extent to which their evidence may have made a difference to your conclusions.

If the accused employee is absent

If the employee who is the subject of the allegations is absent, that is a more difficult situation, but the overall approach should be the same.

If an investigatory meeting cannot be held, rather than delay matters indefinitely, you should carry out as thorough an investigation as possible in the employee's absence.

It may be appropriate to write to the employee seeking their input and inviting them or their representatives to make representations or present evidence that may assist you. However you should not approach the employee directly without first seeking advice from HR.

If your investigation has been completed without input from the employee, this should be clearly noted. Where the evidence indicates that there is a clear case to answer, the fact that the employee has not been interviewed should not prevent you from reaching that conclusion. It will then be a matter for any disciplinary hearing to ensure that the employee's version of events is heard and direct, if necessary, that further investigation be undertaken.

Concluding an investigation

19. Arranging the evidence

Once the evidence has been gathered, you need to arrange it in a logical order to be able to assess it. It is generally best to arrange documents in chronological order. The documents can be attached as an appendix to your investigation report, along with the finalised notes of your interviews with witnesses.

In many cases, it is helpful to work out a detailed timeline of events and cross reference that with particular documents or passages from witness interviews. Setting out a timeline will help you see how events unfolded and also identify any gaps there may be in the evidence.

You may well have spoken to several people who each saw the same event. You should compare their accounts to see to what extent they support each other and whether there are any inconsistencies or contradictions.

You need to bear in mind that memory is always flawed and two accounts of the same incident will never match exactly. If they do, that might suggest that there has been some collusion between the witnesses. While individual details may differ, you would expect the broad thrust of what witnesses saw to match. If they do not, that is likely to cast serious doubt on what happened.

You should also, where appropriate, match a witness's account against any documents that you have obtained. It may be that an email or written record of meetings or processes supports or contradicts a detail in evidence given by a witness. A careful cross-referencing between the witness accounts and available documents often sheds a great deal of light on what happened.

In some cases, you will have two different versions of events that cannot be reconciled and where the conflict cannot be resolved by looking at the documents. Where this happens, you should note the conflict and leave it to be resolved if necessary by a disciplinary hearing.

The fact that an allegation boils down to "one person's word against another's" is not in itself a ground for finding that there is no case to answer at a disciplinary hearing.

20. The investigation report

Once you have gathered all the relevant evidence, you need to present it in an investigation report, with a summary of the evidence gathered in relation to each of the allegations that have been investigated. Your investigation report should clearly explain:

• What facts have been established by your investigation?

• What other facts remain contested?

Your investigation report should have a clear and logical structure and should include:

• Terms of reference: A clear statement of the allegations that were made and the specific matters you were asked to investigate.

• Methodology: A brief account of how the investigation was conducted, including the names of the witnesses spoken to and the way in which documents were obtained.

• Summary of evidence: For each allegation made against an employee, a summary of the evidence gathered, including the evidence supporting the employee's account as well as the evidence supporting the allegations.

• Assessment of evidence: Your conclusions about what the evidence shows. In this section, you should identify the facts that have been clearly established by the investigation and those where the evidence is not conclusive.

• Conclusions and recommendations: Some employers do not ask investigators to reach any conclusions but merely report on the evidence gathered. It is for the others within the organisation to assess what conclusions can be reached. However, where conclusions and recommendations are required, this section can be used to summarise your findings.

You can either recommend that:

• there is sufficient evidence to go forward to a disciplinary hearing; or

• no formal disciplinary action should be taken.

While it might be helpful if your conclusions say something about the seriousness of the allegations, it is not the purpose of the investigation to make any recommendation as to what sanction should be imposed if the allegations are upheld. It may also be helpful to set out any recommendations that, in light of your investigation, you feel would help resolve any of the issues that have been identified.

Appendices: It is useful to attach copies of the documents to which you are referring in your investigation report, as well as the notes of witness interviews.

21. Reaching your own conclusions

Whatever conclusions you are able to reach at the end of your investigation, it is important that they are your conclusions alone and not influenced by others.

You must base your conclusions on the evidence that you have gathered and not on what you feel might be expected of you by senior management or HR.

This is your investigation, and you should be prepared to stand by it.