Carrying out investigations

1. Carrying out investigations Toni McAlindin March 2013 To join the Employment Law network and receive free bulletins email info@tonimcalindin.co.uk

2. When is investigation needed? • There are many employment situations which require a rigorous and thorough investigation • Caselaw has developed over the years regarding a “reasonable” investigation • It is a significant factor in cases of unfair dismissal and in cases of discrimination particularly allegations of bullying and harassment • However other situations require an employer to “investigate” ie gather information

3. For instance • Cases of misconduct – probably the most obvious areas eg theft, violence, breach of company policies • Attendance and performance issues • Bullying and harassment – whether or not linked to any discriminatory reason • Absence due to stress • Grievances raised by an employee • Collective grievances • Following action against the company such as losing a tribunal • Whistleblowing allegations • Etc, etc …………. In other words it is a normal part of everyday management

4. The disciplinary investigation • Whatever the reason for conducting an investigation, several factors will be common • For instance the rules of natural justice ie everyone has the right to know the case against them – so it must be properly investigated to ascertain what that case is • Everyone has a right to answer – this is part of a fair procedure in general – however an individual may be interviewed as part of the investigation – at the “fact finding” rather than “blame giving” stage • There should be no bias • Therefore an individual who is a victim, a witness or likely to play another part in proceedings should not carry out an investigation • This is particularly true of misconduct investigations but less true of investigations into attendance or performance

5. Discipline continued • Investigations are key to following a fair procedure • An inadequate investigation might render dismissal unfair • To be fair a dismissal has to be for one of the five potentially fair reasons ie conduct, capability, redundancy, statutory ban, some other substantial reason • An employer must then go on to demonstrate that he acted fairly • An employer is not expected to achieve the criminal standard of beyond all reasonable doubt but only a reasonable belief • The leading case is British Home Stores v Burchell 1978 where the EAT held that an employer must establish a genuine belief on reasonable grounds after a “reasonable investigation” • In Polkey v Dayton Services Ltd 1987 the House of Lords held that any procedural shortfall will make a dismissal unfair (although compensation might be reduced following the “no difference rule”) • Failure to follow the ACAS Code on discipline might lead to an uplift of up to 25% on the compensatory award

6. Purpose of investigation • As stated in the ACAS code – to establish the facts • Should be someone at management level – procedures may dictate who does it – in large organisations there may be specific trained investigators • Different person to the one conducting the hearing • Employee may want to carry out own investigation • Depends on what is being investigated eg appraisals for performance, sick notes, contractual terms, other employees’ discipline, letters, emails, policies, procedures, speaking to other staff, unions, representatives • Where an employee is suspended it is difficult to collect evidence – sometimes that is why the individual is suspended to stop them influencing the investigation or other employees

7. Polkey • The famous case of Polkey – often called the “no difference” rule ensures that failure to follow a proper procedure including investigation is almost guaranteed to make any dismissal unfair • The level of compensation, however, may be reduced to reflect the fact that a fair procedure may have led to the same outcome • However why chance it – better to have a fair procedure including discipline ie there are no circumstances when failure to investigate can be excused no matter how flagrant the misconduct

8. Seriousness • The more serious the potential consequences the higher the standard of investigation required • Salford Royal NHS Foundation Trust v Roldan a nurse was accused of mistreating a patient, based on the evidence of a colleague. Dismissal for GM was the end of her career, loss of work permit and deportation – high standard required • Crawford v Suffolk Mental Health Partnership – nurse unfairly dismissed following an allegation that she used improper restraint methods on an elderly patient. Dismissal unfair – hospital conducted staged reconstruction without inviting the claimant or her representative

9. Range of reasonable responses – carrying out further investigation • Stuart v London City Airport – individual worked at City airport • Went into duty free to buy present • Held in his hands – re-directed to a different till • Called over by colleague over the store boundary and had a discussion • Dismissed for misappropriation • Did not interview store operatives or other colleague • Did not check CCTV camera • Unusual for court to intervene and require further investigation but here EAT stated that where there are serious allegations of dishonesty then failure to carry out exculpatory investigations was objectively unreasonable

10. Suspension • Consider very carefully whether it is required • See recent case of Crawford v Suffolk Mental Health Partnership NHS Trust – two nurses suspended pending investigation into mishandling patient with dementia • Six month suspension • Court of Appeal – held sometimes a long suspension may constitute breach of trust and confidence, can lead to stigma even if no discipline • Held no real risk of behaviour being repeated if they stayed at work – astonished that referred to police • Suspension should not be automatic – each case should be considered on its merits ie risk of repetition, impact on other staff, fair investigation

11. Criminal offences • The ACAS code makes it clear that just because an employee is charged with or convicted of a criminal offence, this is not enough in itself for disciplinary action • Consideration needs to be given to what effect the charge or conviction has on the employee’s suitability to do the job and their relationship with their employer, work colleagues and customers (para 30) • In other words it depends on the nature of the offence, whether it happened at work (often will be gross misconduct) or outside of work, the nature of the job, the impact on the workplace eg reputation • Someone charged with fighting – may have no impact on work, someone charged with sexual offences – may have an impact depends on the job and other colleagues • It is not for the employer to take a moral view of the conduct but to look at how it affects the employer and the employer’s reputation • Criminal offences at work will normally be for “conduct” reasons, outside it may be “SOSR” eg trust and confidence

12. Police investigations • If the police are carrying out a criminal investigation into a matter that is also part of a disciplinary investigation the employer may be hampered in gaining sufficient information • This is particularly likely if the incident happened outside of work • See Leach v OFCOM allegations of child sexual abuse whilst on holiday in Cambodia • Several branches of the police said that he was under investigation • Employer had no way to test the information but feared damage to reputation and dismissed for breach of trust and confidence • ET – fair dismissal for SOSR, proper hearing, had not just accepted word of CAIC but investigated as far as it could • EAT held Ofcom entitled to protect its reputation • CA – only question was whether this was SOSR • Aware of potential injustice but only question was had the employer acted reasonably – injustice not from employer but those falsely accusing him • Employer would have neither expertise nor resources to independently verify the allegations

13. Police investigations contd • The employee may be advised by his lawyer not to cooperate for fear of damaging any criminal trial • It may be difficult for an employer to get access to relevant information to conduct a proper investigation • The employer must carry out his own reasonable investigation as far as the circumstances allow • It should not rely on the outcome of police investigations as for the most part these will relate to criminal sanctions with a different burden of proof and potential penalty • If the police investigation does not result in prosecution the employer could still conclude that disciplinary action is justified on the basis of his own investigation because the test is “reasonable belief” whereas in a criminal case it is “beyond all reasonable doubt” • If the police investigation results in a prosecution an employer will have to decide what impact that has on his or her decision to dismiss eg if the employee is in prison, is found guilty of a crime (this is likely to be gross misconduct)

14. Group Dismissals • Sometimes it can be impossible to ascertain who committed an act of misconduct particularly areas such as theft • It may be clear after investigation that it is one of two or more but not possible to decide whom • It can be fair to dismiss both or all if • act justifies dismissal • employer has made a thorough investigation • employer reasonably believes more than one person could have done it • employer identifies the group who could have done it • each person was individually capable of doing it • employer cannot reasonably identify the culprit • Equally an employer may have two conflicting sets of information and must decide who to believe – if unable to resolve conflicting accounts – the wrongdoer might be given the benefit of the doubt

15. ACAS code of practice on disciplinary and grievance procedures • Practical guidance on handling discipline and grievance situations and recommendations about investigations • It suggests • Establishing the facts of the case by carrying out investigations without unreasonable delay • Sometimes this will be collation of evidence eg performance or attendance figures, paper evidence etc • Others will require investigatory meetings with the employee and/or others eg witnesses • In misconduct cases different people should carry out the investigation and disciplinary hearing • If there is an investigatory meeting, it should not in itself lead to any disciplinary action • Any period of suspension should be as brief as possible and should be kept under review • Although there is no statutory right for an employee to be accompanied at this stage, such a right may be granted under the employer’s policy

16. Act quickly • The code emphasises that any investigation must be carried out without unreasonable delay to establish facts before memories fade • Relevant factors may include whether the employee had admitted any of the allegations, whether key facts were properly investigated at an early stage (Lim v Royal Wolverhampton Hospitals NHS Trust), the extent to which allegations rely on memory as opposed to paper evidence and whether witnesses still work for the employer • Problems arise where the police or other external parties are involved eg Care Commission in a care home

17. Questioning your accuser or manager • Everitt v British Telecommunications plc - EAT held employee was not entitled to question his line manager as to the latter’s investigation as the employee had admitted the offence • The only purpose would have been to question the manager’s motivation rather than dispute the adequacy of the investigation or the truth of the allegations he made against the employee • No hard and fast rule – depends at all the circumstances • For dismissal to be fair employer must establish that it reasonably believed that the employee committed the act of misconduct – to do so it must have carried out an investigation that is reasonable in all the circumstances. Where as here the employee admits the offence, the need for further investigation is reduced • However he still has a right to make representations on the allegations

18. Establishing the facts • Keep an open mind especially if the issue is a serious one • The nature and extent of the investigation will depend on the seriousness of the matter • Look at the evidence • The meeting should be confined to establishing the facts not deciding on a penalty • Know your own policies not just discipline but any other area you are investigating • Some issues will be regarded as minor by one employer but less so by another depending on the industry norms • For instance does the policy lay down timescales for carrying out an investigation, does it mention who and at what level should carry out an investigation?

19. Investigatory meeting • Depending on the circumstances it may be necessary for an investigating officer to take a statement from an employee accused of misconduct so as to obtain his or her account of events • This is more likely where there are doubts about the evidence eg one person’s word against the other, third parties giving evidence • As with other areas of discipline it is important to give the employee notice of any meeting and time to prepare • There may be a need to interview several witnesses • Equally it may become apparent during the investigatory meeting that other people have to be interviewed • Some may be reluctant witnesses eg other members of staff particularly if there are issues of bullying • See rules on anonymous witnesses – obviously not ideal but not uncommon • See also witness statements

20. Witnesses • The investigating officer should arrange to meet individually with any witnesses to the incident or events • He or she should ask the witness to give his or her own account of events ie not hearsay or second hand information but what they themselves saw or heard • Statements should be made into witness statements and checked by the witness for any errors • Employers cannot insist on an employee providing a statement and may need to address any concerns • It may be possible to anonymise some or all of the statement ie blanking out parts which identify the witness or providing only a summary of the statement • If anonymous statements are used the investigating officer should seek corroborating evidence of make a judgement as to whether the witness has any motive in lying • It may be necessary to re-interview witnesses during the whole process as other relevant evidence comes to light

21. Witness statements • Hussain v Elonex 1999 IRLR 420 • main question is whether there is a fair and reasonable investigation • no universal requirement to show statements • but could be contractual requirement (avoid where possible) • must only disclose statement if it contains the essence of the case and • employee otherwise does not know case against them (rules of natural justice • Many witness statements may be taken but only a small amount of the information might be relevant. The employee has no inalienable right to see this information only to know the case against him or her.

22. Anonymous informants • Guidance in Linford Cash & Carry v Thomson 1989 IRLR 235 ie • disciplining manager to interview informant • establish whether there is an ulterior motive • is the information credible ie could the witness have seen the act, heard comments etc • is there any corroborating evidence • reduce information to written statements • may be able to give statements with names deleted or verbally • refer back to informant if issues arise at hearing

23. Anonymous informants • Ramsey v Walkers Snack Foods Ltd- dismissal for theft of money in crisp packet – challenged when evidence came from employees who did not wish to be identified • Informants interviewed by HR manager who prepared written statement – unsigned – contained no information which might identify informants • EAT held fair dismissal even though not all guidance in earlier case of Linfood Cash & Carry Ltd v Thomson were complied with ie lack of detail – more detail might have identified witnesses • Managers involved in disciplinary hearing did not interview witnesses or weigh up their evidence – witnesses did not want to be interviewed by wider pool of managers • Need to look at reasons for anonymity and whether it should be extended on the facts of the case

24. Surveillance evidence • Time moves on as does technology. Cases are now likely to involve social media both inside and outside work, secret recordings – (see recent HMV case where employees uploaded redundancy meetings to Youtube) • CCTV – covered by Data Protection – invasive • Common to have cameras inside work but rarely covert but may use covert where crime or serious offence is suspected. Often use to “spy” on employees is assumed to be abusing sick pay scheme • McGowan v Scottish Water – EAT confirmed that human right respect for private and family life (Art.8) is triggered by surveillance of staff. But it is a balance – as long as a proportionate means of achieving a legitimate aim – eg crime prevention • In the above case two private investigators watched Mr M coming and going from home – held proportionate • Important to explore other alternatives first – should have a policy which allows and tell employees – should be time limited

25. Documentation • The investigating officer should collect any statements and other documentation relevant to the disciplinary issue • These may include expenses claims, absence records, clocking in cards, video or CCTV evidence • The investigating officer should compile the information and submit this with his or her recommendations to the person or persons who will make a decision on whether to proceed to the disciplinary interview stage • This information should also be provided to the employee • The employee should have the opportunity to see this information prior to the hearing (subject to what was said above re anonymous witnesses)

26. The right to be accompanied • As an investigation is a gathering of facts, it is generally understood that there is no right to be accompanied as there is for the disciplinary procedure itself • However a company’s own procedures may provide for a right to be accompanied and in some cases a right to be represented (more involved than accompanied) • Trade unions and representatives believe that individuals should have a right to be accompanied • Management do not always agree arguing that this stage is a gathering of facts not an accusation or a disciplinary hearing • However some individuals may feel confused or give rise to concerns during answers to questions

27. Five “Ws” – helpful in investigation • It may be useful to consider the following when conducting an investigation particularly into issues of misconduct • WHO - was involved, witnesses • WHEN - incident handled, in work or out • WHAT - happened, different versions, records needed eg job descriptions, rules • WHERE - did it happen • The fifth is more important in the hearing itself • WHY - incident took place, at that time or place, involving that particular person • NOTE IMPORTANCE OF DIFFERENT PERSON CONDUCTING INVESTIGATION THAN HEARING

28. What to do • What evidence do you need? • Who do you need to speak to eg what witnesses • See above for witness statements - better to speak to a person and record • Other things eg CCTV, documentation, policies • Perishable evidence • Can interview employee under investigation and any witnesses more than once as other information comes to light • What do you need from each person, putting alternative versions to witnesses • Remain flexible – have some idea of what questions you want answered though • Don’t put words into witnesses’ mouths or suggest answers • Ask for information in the witness’s own words • Record and have the person check afterwards that this is what was said • Train managers to undertake investigations • Should there be suspension

29. Case to answer • The purpose of gathering facts is to decide on whether there is a case to answer • No disciplinary action should be instigated at an investigatory stage • There should be a clear separation between the two stages • A number of choices need to be made depending on what arises during the investigation eg anonymous information not backed up by more – do you continue at all even if you feel it is genuine • Conflicting information – do you give the employee the benefit of the doubt • Is there enough to move to carrying out covert surveillance • Is more than one person involved and one if not both must be the culprit • Remember – reasonable belief, on reasonable grounds, after reasonable investigation (see above for what is a reasonable investigation)

30. Performance and attendance • Although the basic rules are the same, in reality the immediate line manager will conduct the investigation into “capability” type discipline • It is still important to ascertain the facts eg level and frequency of absence, reasons for absence, whether there is a disability, what the prognosis is, whether any adjustments need to be made, impact on other staff • With performance management should have robust performance appraisal systems but these tend to be an annual evaluation whereas performance management should be ongoing ie what are the standards expected of the employee, what is the actual performance and therefore what is the gap • Discussion should then centre on the reason for the gap and ways of closing the gap • This should be done before any formal discipline takes place

31. Grievance investigations • When an employee raises a grievance it is important that it too is investigated • Take the grievance seriously ie why does the employee feel aggrieved • Investigate the facts and the surrounding circumstances – show the employee that action has been taken to ascertain the grievance • Look for a solution that will satisfy the employee but not damage the employer or other employees • Provide feedback but be careful re what is happening to other employees as a result eg grievance against a manager

32. Grievance investigations contd • A grievance may raise issues unknown to the manager who may not know or have all the facts • There may be allegations about another employee eg bullying and/or harassment • These will have to be investigated promptly and sensitively – where the grievance relates to another employee both have rights at work • This may necessitate talking to witnesses • It should be stressed that any discussion is confidential – equally the party should not discuss matters with others • Don’t make assumptions • Keep an open mind – it will often be one person’s word against the other

33. Disciplinary Interviews • If the investigation concludes that there is a case to answer then there should be a proper and separate disciplinary hearing conducted by a different manager. • The principles are:- • Thorough preparation • Stating the purpose at the start • Conducting it fairly but firmly • Listening to all sides and views • Stating the outcome clearly and sympathetically • Sometimes it may be worth having a script – this could rarely be followed verbatim but it helps concentrate the mind on the essentials • Often emotions get in the way ie anger, tears, violence • Accurate documentation is VITAL

34. Summary • Act quickly • Inform the employee • Decide who to interview • Conclude in a reasonable time • Establish the facts, who, where, when, how and maybe why although this may be part of the disciplinary hearing • Confidentiality • Clarify • Who should carry out the investigation • Documentation, policies, procedures, previous cases, recording • Suspension • Right to be accompanied • Preparation of questions

35. Dos and dont’s • Allow witnesses to refer to documentation to refresh memory • Pause if the witness needs a break • Record all pertinent facts • Keep calm and focused • Remember all parties need to keep things confidential • Don’t be afraid to challenge the witness • Don’t substitute your own view • Don’t encourage witnesses to offer opinions and don’t offer your own • Don’t assume or draw hasty conclusions • Don’t disclose confidential ifnormation