Getting Disciplinary and Grievance Investigations Right

Workplace Investigations

A well-conducted workplace investigation is one of the most important stages of any disciplinary or grievance process. Whether dealing with allegations of misconduct or concerns raised by an employee, the investigation provides the foundation for fair, informed decision-making.

Investigations are also one of the stages where employers most commonly make procedural mistakes. This is often because investigations are assigned to managers who lack experience in conducting workplace investigations or who are trying to balance the investigation alongside their day-to-day responsibilities, leaving insufficient time to carry out a thorough investigation.

By following your organisation’s internal policies, and the ACAS Code of Practice on Disciplinary and Grievance Procedures, managers can ensure investigations are fair, thorough and legally defensible.

Employment Tribunals take it into the ACAS Code account when considering relevant claims and an unreasonable failure to comply with the Code may result in an Employment Tribunal increasing any compensation awarded by up to 25%.

Common Investigation Pitfalls

1. Starting with the wrong mindset

The purpose of an investigation is not to prove that someone is guilty, to justify a particular outcome or simply confirm an initial view. An investigator’s role is to gather relevant facts objectively, consider all available evidence, and establish what has occurred as far as is reasonably possible.

Investigators should remain impartial throughout the process, following the evidence wherever it leads. This includes considering evidence that both supports and contradicts the allegations or grievance.

2. Treating the investigation as a disciplinary hearing

The investigation stage is separate from any disciplinary hearing. Its purpose is to establish the facts, not determine sanctions or disciplinary outcomes.

The investigation simply establishes whether there is sufficient evidence for the matter to progress to the next stage of the process.

3. Failing to investigate all reasonable lines of enquiry

A reasonable investigation should consider all relevant evidence, including witness accounts, documents, emails, electronic records, CCTV (where appropriate), and any explanation provided by the employee concerned.

An investigation does not have to examine every possible avenue of enquiry; however, ignoring relevant evidence or witnesses can call into question the fairness of the entire process.

4. Inconsistent or changing allegations

Employees must clearly understand the case they are being asked to answer.

The allegations investigated should remain consistent with those outlined in the invitation to the investigation meeting and, subsequently, in any invitation to a disciplinary hearing.

If new allegations arise during an investigation, the employer should consider whether they require further investigation. Where they are to be relied upon, they should be clearly communicated to the employee, who must be given a fair opportunity to respond.

Changing or expanding allegations without giving the employee an opportunity to respond can easily result in procedural unfairness.

5. Poor documentation

Managers should maintain accurate records throughout the investigation, including:

• witness interview notes;
• documentary evidence reviewed;
• investigation meeting notes;
• evidence considered;
• decisions regarding further enquiries; and
• the reasons underpinning the investigator’s conclusions.

6. Unecessary Delay

Investigations should commence promptly and progress without unreasonable delay. Whilst investigations must be thorough, avoidable delays can affect witness recollection, prolong workplace tensions and increase the risk of challenge.

7. The Standard of Proof

Unlike criminal proceedings, workplace investigations do not require proof beyond reasonable doubt. The appropriate standard is the balance of probabilities. This means considering whether, based on all of the available evidence, it is more likely than not that the alleged conduct or events occurred.

Investigators should assess the quality and reliability of the evidence rather than simply counting the number of witnesses or documents supporting each version of events.

To conclude

A fair investigation is not simply good practice, it is an essential safeguard for both employers and employees. Taking the time to conduct a thorough, balanced and well-documented investigation helps ensure that decisions are fair, defensible and consistent with the principles set out in the ACAS Code.

By approaching investigations with neutrality, focusing on fact-finding rather than fault-finding, and applying the correct standard of proof, employers place themselves in the strongest possible position should their decisions later be scrutinised by an Employment Tribunal.

If you would like support or guidance in undertaking a workplace investigation, please do not hesitate to contact a member of our team.