DISCIPLINARY PROCEEDINGS - 17.05.2013

Should you re-interview the accused?

A procedural problem

One of our subscribers recently had to commence a disciplinary investigation after one of its employees was accused of wrongdoing. Quite correctly, they asked the individual to attend a disciplinary investigation in order to establish their version of events. Following that meeting, they then interviewed other witnesses whereupon some further evidence came out. In light of this, they want to know if they should re-interview the accused, or stick with the initial investigatory meeting. What’s our advice?

Relates to the original

If the new evidence relates solely to the original allegation of misconduct, our subscriber has a choice. They can either:

1. Request that the accused attends another investigatory meeting and then put the further evidence to them there; or
2. Use this further evidence as part of their decision to commence disciplinary proceedings.

Stay within your boundaries

If they opt to request a further investigatory meeting, they should only seek to establish the employee’s version of events based on the further evidence that’s been put to them.

Tip 1. They should take their time here - otherwise the accused could later claim that the overall procedure was unfair - but it’s not an opportunity to completely re-do the investigatory interview or tempt a “full confession”. That said, this further investigatory meeting can be used to clarify anything else that remains unclear.

Tip 2. Should our subscriber go with the second option, i.e. they decide to move straight to formal disciplinary proceedings, they shouldn’t forget that the employee has the absolute right to both see and consider in good time all evidence that will be used to support the allegation(s) of misconduct prior to the disciplinary hearing.

Evidence of other misconduct

On the other hand, where the further evidence relates to other, possibly unrelated, misconduct, i.e. it’s in addition to the original allegation, our subscriber doesn’t have a choice if they wish to pursue it formally.

Risk 1. If they don’t call the employee back in for a further investigatory meeting about this new issue they won’t be able to safely rely on it later.

Risk 2. Furthermore, if they simply bundle it up with the other allegation(s) for the purposes of the formal disciplinary hearing, they’ll be on dodgy ground if the employee is subsequently dismissed. That’s because the investigation won’t be fair overall.

Tip 1. If the formal disciplinary hearing hasalready been set there’s no need to panic - just place it temporarily on hold and send out a further request to attend an investigatory meeting.

Tip 2. You don’t have to tell the employee what that new evidence is prior to this further investigatory meeting; if you don’t you will be able to keep an element of surprise.

For a free sample request to attend an investigatory meeting, visit http://tipsandadvice-personnel.co.uk/download(PS 15.11.05).