DISCIPLINARY MATTERS - 10.10.2017

A robust disciplinary investigation report

Best in writing

Now that tribunal fees have been abolished, there’s likely to be an increase in the number of claims brought against employers. So when you’re dealing with potential disciplinary matters it’s more important than ever to carry out a robust investigation. One crucial issue is how the appointed investigator documents and presents their findings to give you the best chance of defending any claim.

Why bother?

Whilst there’s no express legal requirement for employers to record the progress of a disciplinary investigation in writing, it’s best to do so. This will make it much harder for your findings, and the reasoning behind them, to be challenged. For example, if the employee alleges bias, you’ll have documentary evidence that describes your approach. Having a hard copy record also makes misunderstandings less likely.

What to include?

The main purpose of a disciplinary investigation is to identify the relevant facts surrounding the alleged wrongdoing in a fair and objective way. Any written report should include the following sections: (1) the name of the investigator and the manager authorising the investigation; (2) the investigation start and end dates; (3) the background and scope; (4) an outline of what evidence has been collected; (5) an explanation of any evidence that’s been omitted and why; (6)  how this evidence supports the investigator’s findings (or not); (7) any mitigating factors that were found; and (8) recommendations.

Detailed evidence

The investigation report should also detail how evidence has been gathered and analysed by the investigator. In particular, it’s critical that any findings that support the employee’s position are considered and included. The same applies for any mitigating circumstances that could explain their conduct, such as common practice, provocation or personal problems. Equally, where the evidence has proved inconclusive, e.g. poor quality CCTV footage, this needs to be included.

Making recommendations

There’s a risk that the investigation report can contain too much information in the “recommendations” section. The specific danger here is that the investigator doesn’t limit themselves to suggesting that disciplinary action is justified, but goes further to suggest a sanction, e.g. dismissal. If so, they’re overstepping their role, as deciding on a sanction is for the person chairing the disciplinary hearing. They should only make a decision once all the evidence has been considered at the hearing.

Tip 1. The investigator’s active role should end after they have handed their report over. However, they can be asked to answer questions about their report at the disciplinary hearing.

Tip 2. If the investigator does attend the hearing, it should only be to clarify some aspect of their investigation; they should not do anything else.

For a free disciplinary investigation report, visit http://tipsandadvice-personnel.co.uk/download (PS 19.18.04).