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Response from our seminar – Investigation in employment disputes – 10 (ish) do’s and don’ts

Our seminar on “Investigation in employment disputes – 10 (ish) do’s and don’ts” took place in Glasgow today. We had a great attendance at this seminar and it generated some really interesting questions about both disciplinary and grievance investigations. Some of the questions we received during the seminar and afterwards are highlighted below. We thought it would be useful to share our responses.

Q: “Before suspending someone and starting an investigation, we have a step built into our disciplinary process whereby we consider the issues; consider whether there is a possible case to answer; and consider if a disciplinary case could lead to dismissal. Is this a sensible approach?”

A: In any disciplinary case, it is always sensible to consider what direction you are travelling in and conduct a risk analysis before you start. It is not necessary to formalise this process but conducting such a risk analysis will assist you in deciding whether suspension might be merited. It will also assist you if there is a possibility that the process could lead to dismissal. It provides you with an opportunity to consider what additional steps and safeguards you might need to consider as you proceed with the investigation.

Q: “We have been questioned by a Tribunal in the past, regarding our decisions to interview certain witnesses and not others. We have also been questioned about the order in which we have spoken to witnesses during an investigation process. How should we approach deciding what witnesses are necessary during any disciplinary or grievance investigation?”

A: When investigating any grievance or disciplinary issue, it is always a good idea to consider who you will require to speak to, to investigate the issues complained of or the allegations against an employee.

The starting point is the person who has lodged a complaint or the person with suspicions. Spend time at the beginning working exactly what the issue is and identify what tangible things the employee is complaining about or is said to have done. This will assist you in ascertaining which witnesses you may require to speak to and the order you might need to speak to them in. If you can show that you have taken systematic approach to this then that will be helpful if the case ends up in Tribunal.

Often you will have employees facing disciplinary action who feel that other witnesses require to be spoken to as part of the investigation. You may consider that these other witnesses are not relevant. They may not be. However, before making any decisions in this respect, ask the employee why they consider these witnesses are relevant and consider their response. You are much more likely to be able to persuade a Tribunal that you have taken a balanced approach to identifying appropriate witnesses if you have taken the employee’s view into consideration.

Q: “What level of investigation is required if we are investigating allegations of a serious and potentially criminal nature?”

A: When an employee faces potentially career ending allegations, the investigation process is likely to be under even more scrutiny should the case end up at Tribunal.

It is important to remember that a particularly conscientious and careful investigation is required when employers are investigating any allegations of potentially criminal misbehaviour. Case law has highlighted that the investigator charged with carrying out the inquiries should focus no less on any potential evidence that may exonerate or at least point towards the innocence of the employee as he or she should on the evidence directed towards proving the charges against the employee.

If you missed out on this seminar in Edinburgh and Glasgow, there is still the opportunity to attend our Aberdeen seminar.  This is being held on 5 November 2013 with Joan Cradden. Further details on this seminar and how to sign up can be found here.

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