Investigate, Investigate, Investigate

January 24, 2014

Investigate investigate investigateIn line with ACAS guidelines, your QCS disciplinary procedure states that: “No disciplinary action will be taken against an employee until the case has been fully investigated.” Then there is also an almost contradictory requirement (still in line with ACAS) which states that, “All stages of the procedure will be implemented without undue delay!”

What if abuse is suspected?

Where matters of service user abuse are suspected then there may be a requirement to involve local social services by contacting the Adult Protection or Safeguarding Officer or, in certain cases, the police. Indeed, there may be a condition that you do so if you receive public funding. It might be, in those cases, that the whole investigation is taken out of your hands.

This article is intended for situations which can remain under your control. But the article may be useful guidance to monitor investigations by others to see that such investigations are properly and fairly conducted.

So what is an investigation and to what degree should it be conducted?

Essentially investigation is about establishing all facts that might be relevant to the case, so far as is reasonably possible.

There are circumstances where the degree of investigation can be limited, particularly if the situation is not too serious. For example, perhaps someone has accepted responsibility for a careless error but nevertheless a formal warning is justified. In such circumstances the ACAS guide recognises that an investigatory meeting is not always necessary. Your QCS procedure provides for this. Indeed, I would argue it is often better to deal with the situation quickly and move on. Making mountains out of mole hills is invariably counterproductive to maintaining productive employee relations.

On the other hand if a serious, careless error is not admitted, or contested, and dismissal for gross misconduct is being contemplated, then thorough investigation is essential. The facts might not be as they first appear to be. Having such an investigation carried out by an experienced person can assist in establishing fairness. In any case, it is preferable that the investigating officer and any subsequent disciplinary chairperson are different people.

The prime task is to gather evidence.

Evidence can come in a number of forms:

  • Witness testimony

This is frequently the main source of evidence. You really want such testimony from more than one source. It is also important that you are confident that each witness is independent. If they all report to the same person this may give cause for doubt. It is not unusual for employees to claim that they have been “framed.” You don’t want the first time you hear of this to be when you are in a tribunal. So be alert to this possibility and eliminate conspiracies if you can.

Employees are now entitled to call witnesses to a disciplinary hearing. It may therefore be wise to speak to any witnesses that the employee intends to put forward in their defence – but NOT to intimidate them!! Be careful, so you are not accused of doing so.

Make detailed notes of what the witnesses tell you and challenge them and what they say. You need to flush out any doubts, conspiracy or false testimony.

I’ve come across actual testimony where:  X  thought something had happened, X told Y what he thought he had witnessed and Y then told the investigating officer Z what had happened. This was then written up by  Z,  as  testimony. The disciplining officer then used this “evidence” to dismiss the employee!!

  • Investigatory meeting

Employees should be given advance warning of an investigatory meeting. If you have adopted the QCS procedure (as it stands in Jan 2014) then the employee has the right to be accompanied. See your procedure for details. Otherwise there is no such right and it is up to you to decide whether allowing accompaniment would hinder or help the investigation. Be clear with the employee about the status of the meeting – it is an investigatory meeting, not a disciplinary meeting or a disciplinary hearing.

The purpose of the meeting is to establish facts, or at least the facts as the employee sees them. It is not the place for defence or explanation; that may come later if a disciplinary meeting is still required.

Similarly, you might not wish to put other evidence that you have gathered before him or her. That can come later. Nonetheless, in some cases doing so can be helpful. It is a matter of judgement in each set of circumstances.

  • Signed statements

If signed statements are presented to an employee then that may reduce the likelihood of him or her calling witnesses to a disciplinary meeting and thus simplify the process.

  • Unsigned statements

Sometimes there is the fear, real or imagined, of the witnesses being subject to harassment, intimidation or violence from the employee against whom they are testifying. I’ve experienced that in the case of a person suspected of dealing in drugs. In such circumstances it is crucial that the disciplining officer also talks to the witnesses and challenges their statements, as discussed above. If it comes to a Tribunal then it will be the disciplining (or dismissing) officer who has to stand up in court and justify his or her decision.

  • Other evidence

Photographs and even Smartphone videos can provide corroborative evidence. You may have seen the Waterloo Road episode where a teacher is provoked to “cross the line” and out come the Smartphones! A tricky situation for the investigator.

CCTV footage (including targeted footage) may also be used as corroborative evidence but blanket CCTV coverage must not be used as a means of monitoring employees. That could infringe human rights.

Tests of sobriety are also sometimes valuable though obviously they need to be used at the immediate time. For example, could the apparently drunk employee read a simple passage of writing?

Was it the employee’s responsibility and were they trained for that responsibility?

An employee will often assert that a particular failing was not their responsibility and that therefore they should not carry the can. In one instance where food poisoning was involved, the question arose as to whose responsibility it had been to chill the meat, or at least make sure it had been chilled.

An organisation chart, job description and training records all helped to establish who was responsible and to justify a decision to dismiss.

Have actions, that have been taken already, suggested how serious the misdemeanour might be?

If first line management treats the situation as minor then this can undermine the whole case. In a case before Tribunal an employee turned in drunk to a care home at 7am one morning after admitting being at a night club until 3am. The staff allowed her to sleep it off and finish her shift (for which she was paid). How then could they dismiss her for gross misconduct? She should have been suspended immediately pending investigation.

Did the employee “know the rules”?

This is a secondary, but nevertheless important, point.

A starting point is the written particulars or written contract of employment. It is important to show the employee has received these. It is better still if he or she has signed them to say they have been read and understood.

Disciplinary rules are also important. These should be readily accessible to the employee. An actual copy in the employee’s hand is not essential but it is important that the employee knows they exist and where they can be accessed.

A record of attendance at an induction can also be valuable; especially if disciplinary rules are covered at that induction.

Previous warnings, even if they are expired, can also underline the fact that the employee knew the rules.

Finally, is the conduct of the investigation consistent with your own procedures?

I have outlined a procedure that should prove robust in all cases but if your own procedures call for more, or for a different emphasis then your investigation could still be faulted.

Read your procedures through and tick off the boxes.

Do I really have to do all this?

Possibly you do. If you might destroy someone’s livelihood then you owe it to them to be thorough. But you do not need to be a sleuth. Your task is to establish facts such as can be reasonably established. Evidence is crucial but the obligation of the disciplining officer is that he or she needs to be convinced on the “balance of probabilities.” It would be a brave decision to dismiss on the basis that you were 55% certain of being right. But a disciplinary decision, even a dismissal, does not need to be based on culpability that is beyond reasonable doubt.

Malcolm Martin – QCS Expert Human Resources Contributor


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