The critical role of a good investigation in disciplinary procedures

For senior leaders, navigating disciplinary and capability issues within the workforce is a necessary, albeit sometimes challenging part, of managing an organisation effectively. A cornerstone of managing these situations fairly and legally is conducting a proper investigation. This article outlines why robust investigations are not just good practice, but a fundamental requirement, drawing on guidance and legal principles.

Why investigations matter: The legal and procedural imperative

At the heart of fair disciplinary procedures is the need to establish the facts of a case. Carrying out investigations without unreasonable delay is a key principle of fairness set out in the Acas Code of Practice (Acas Code). While failure to follow the Acas Code alone does not make an employer liable, employment tribunals must take it into account when considering whether an employer has acted reasonably. Furthermore, in unfair dismissal cases (and certain others), a tribunal can adjust compensation by up to 25% if either party has unreasonably failed to comply with the Acas Code.

When a tribunal assesses whether a dismissal is fair, they consider two main issues under section 98 of the Employment Rights Act 1996 (ERA 1996):

1. Did the employer have a potentially fair reason for dismissal (e.g., conduct, capability)?

2. Did the employer act reasonably in treating that reason as sufficient to justify dismissal, considering all circumstances? This includes a requirement for the employer to adopt a fair procedure before deciding to dismiss.

In misconduct cases, employment tribunals apply the Burchell test, which includes asking: "At the time it held that belief, had the employer carried out as much investigation as was reasonable?". 

An employer must not dismiss based on mere suspicion; they must have a genuine belief in guilt based on reasonable grounds, reached after carrying out a reasonable investigation. Failing to establish all the facts risks a finding that any resulting dismissal is unfair, both due to failing to carry out a reasonable investigation and failing to comply with the Acas Code.

What constitutes a "good" investigation?

The extent and form of an investigation will vary depending on the specific facts. However, a good investigation should meet several key criteria:

Objective and fact-based:  The investigator's role is to establish the facts, insofar as they can, by reference to the available evidence, and identify what cannot be established. They gather and consider evidence about what did or did not happen.

Even-handed: Any investigation should be even-handed. The Acas investigations guide notes that the investigator should look for evidence that supports the allegation and evidence that contradicts it.

Reasonable scope:  An employer must hold such investigation as is "reasonable in all the circumstances", judged objectively. This means investigating sufficiently to ensure the substance of allegations is clear so they can be put to the employee in detail.

Timeliness and thoroughness: Investigations should be carried out without unreasonable delay. The non-statutory Acas guide emphasises that the more serious the allegations, the more thorough the investigation ought to be.

Focus on facts, not culpability: A crucial distinction is that it is not an investigator's role to determine culpability or "guilt". This is for the manager conducting the subsequent disciplinary hearing. The investigator's role is to determine if there is a case to answer by establishing facts.

Avoid opinions beyond scope: An investigator should reach findings where evidence supports them but avoid sitting on the fence. However, they should not make findings on matters outside the investigation's scope or offer opinions on issues not investigated.

Documentation: It is often helpful for the investigator to prepare a report summarising steps, allegations, and evidence. The Acas template investigation report can guide this.

The risks of failing to investigate adequately

Skipping or conducting a flawed investigation can have significant negative consequences:

Finding of unfair dismissal: As noted, a poor investigation can lead directly to a finding of procedural unfairness.

Increased compensation:  If an unfair dismissal is found, unreasonable failure to follow the Acas Code (which mandates investigations) can lead to a compensation uplift of up to 25%.

Lack of basis for decision:  Without a proper investigation, the employer may lack the "reasonable grounds" required to genuinely believe misconduct occurred under the Burchell test.

Damaged reputation: A perceived unfair process can harm employee morale and the organisation's reputation.

Even if a dismissal is ultimately found unfair, a tribunal might deem the failure to comply with the Acas Code reasonable and decide not to apply an uplift, but this is not guaranteed.

Conclusion

For senior leaders, understanding and ensuring effective workplace investigations are conducted is paramount. A good investigation is the necessary foundation for fair treatment of employees and for legally sound disciplinary decisions. It involves a focused, objective fact-gathering process, distinct from determining guilt or sanction. Committing to thorough, timely, and fair investigations is essential for meeting legal obligations, mitigating risks, and upholding principles of fairness, ultimately contributing to a more robust and compliant organisation.

How we can help

At Stone King, our HR Consultants can undertake investigations for your organisation. 

Partnering with us ensures your investigations are conducted by impartial experts dedicated solely to establishing the facts objectively. We provide the necessary resource and expertise to conduct thorough investigations, even for the most serious allegations, ensuring the substance of allegations is clear and properly documented.

By leveraging our external perspective, you clearly establish the distinct roles of investigator and disciplinary hearing chairperson, enhancing the perception and reality of fairness in your process. This commitment to a robust, objective, and procedurally sound investigation lays the essential foundation for fair treatment of employees and legally defensible disciplinary decisions, helping you meet your obligations under the Acas Code and mitigating the risks of costly tribunal claims.

Invest in fairness and protect your organisation's reputation by ensuring your investigations meet the highest standards. 

Contact us today to discuss how our HR Consultants can support your critical HR processes.